'v^.
■"\ K-.
'^
M '-k
^1
'm:f-}-'-\-^
*»^- ^,
-VUr'
<> -"v »V
• •** «»J „.
ALBERT R. MANN
UBRARY
AT
CORNELL UNIVERSITY
h'.l
H
M^l^^^ff^ l^iMWPIW—WI JMJ^lg^
IRfiwpiiffWiffwg:
Ww^^P^iy**'
'BtfTfinHiriiiiiMft9-
-JUSHBBB BB«™=-
-SmHBES^
HIGHSMI TH 45 220
Cornell University Library
HV 4989.L3
Eugenical sterilization in **i« 'J"'**!'.,^*
IIIIIIIMII 111! J I HI lllllll lllilllllllll lllllilllllHl null"'
3 1924 013 882 109
^r c^i^
6^
V— -5.,^V^
^^.^tUr 7^^^'^* ^
li^l
Cornell University
Library
The original of tiiis book is in
the Cornell University Library.
There are no known copyright restrictions in
the United States on the use of the text.
http://www.archive.org/cletails/cu31924013882109
Eugenical Sterilization
in the
United States
By
Harry Hamilton Laughlin, D. Sc.
Assistant Director of the Eugenics Record Office,
Carnegie Institution of Washington,
Cold Spring Harbor, Long Island, New York,
and
Eugenics Associate of the Psychopathic Laboratory
of the Municipal Court of Chicago.
Published by the
Psychopathic Laboratory of the Municipal Court
OF Chicago
December, 1922
a
Z_3
Copyright, 1832,
by the Municipal Court
of Chicago.
C^V^^, ^ 3/
FRED KUtlN CO.
PRINTBRS
Chioaqo, Illinois
*'^.?J
1
Keep the Life Stream Pure.
Introduction
Dr. Harry H. Laughlin, Eugenics Associate of the Psychopathic
Laboratory of th? Municipal Court of Chicago, and Eugenics Director
of Carnegie Institution of Washington, Cold Springs Harbor, N. Y., has
rendered the nation a signal service in the preparation of this work;
"Eugenical Sterilization in the United States."
Since the rediscovery of Mendel's Law of Heredity and the recent
advances made by the biologists and psychopathologists in respect-to the
causes of mental and physical defects in the human race, with the conse-
quent revelation of the great role played by heredity as a producing cause,
the science of eugenics has become of vital importapce.
"Eugenics," says Professor Irving Fisher, "stands against the forces
which work for racial deterioration, and for improvement and vigor,
intelligence and moral fiber of the human race. It represents the high-
est form of patriotism and humanitarianism, while at the same time it
offers immediate advantages to ourselves and to our children. By eugenic
measures, for instance, our burden of taxes can be reduced by decreas-
ing the number of degenerates, delinquents and defectives supported in
public institutions; such measures will also increase safeguards against
crimes committed against our persons or our property."
America, in particular, needs to protect herself against indiscriminate
immigration, criminal degenerates, and race suicide.
The success" of democracy^ depends upon the quality of its individual
elements. If in these elements the racial values are high, government will
be equal to all the economic, educational, religious and scientific demands
of the times. If, on the^ontrary, Jhere, is a^.constant and .^progressive
racial degeneracy, it is only a question of time when popular self-govern-
ment will be impossible, and will be succeeded by chaos, and finally a
dictatorship.
Dr. Laughlin is well qualified for the work he has undertaken. For
twelve years4}e has been in immediate charge of the Eugenics Record
Office (founded in 1910 by Mrs. E. H. Harriman and since 1918 a part of
the Carnegie Institution of Washington), located at Cold Spring Harbor,
Long Island, New York. There he. js^ engaged in organizing and con-
ducting eugenical investigatjonf He is, also, Expert Eugenics Agent
of the Xlommittee on Immigration and Naturalization of the House of
Representatives of Washington, D. C, and recently organized the ex-
hibits of the Second International Congress of Eugenics in New York
City.
As a product of scientific research the book will have permanent value.
The importance and usefulness of the work is not to be gauged by the
[V]
extent of its circulation. Enough copies will be published to reach the
leaders of the medical, legal and clerical professions, the press and mem-
bers of legislative bodies.
The Municipal Court of Chicago, which has for years made an in-
tensive study of crime prevention, punishment and suppression, feels
privileged to be able to make another notable contribution in this field.
The courts have special functions to perform in the suppression of
crime. The first of these is to enforce the laws impartially and justly.
Incidental to this duty much original information comes to the judges of
our courts, and it has been the policy of the Municipal Court to make pub-
lic such incidental information, as the relationship between degeneracy
and crime and their relationship to heredity, through the reports of its
Psychopathic Laboratory. In the performance of this duty the Municipal
Court of Chicago has pointed out the need of the permanent segregation
of incorrigible defectives, which serves three purposes: First, the pro-
tection of society from the individual offender ; second, the protection of
the individual from himself, and, third, the restriction of propagation of
the defective type due to heredity. The .alternative to segregation is to
continue to do what we have been doing, that is, incarcerate the offender
for a*time, more or less brief, and then permit him freedom to repeat his
oflfensCj^jaid to propagate his kind.
Segregation is necessary, even though sterilization were invoked.
Sterilization protects future generations, while segregation safeguards
the present as well. /The segregation of incorrigible defectives on farm
colonies as a measure of crime prevention is urgently needed in the State
of Illinois. However, in a number of states, fifteen up to the present
time, experiments have been made with sterilization. The two theories
of segregation and sterilization are not antagonistic, but both may be
invoked.
With the intention of covering every phase of crime prevention, the
Municipal Court of Chicago publishes this work as an important contribu-
tion to that cause.
We desire to make acknowledgment to the sculptor, Charles Haag,
for the use of his "Fountain of the Ages," to illustrate the significance
of heredity arid the continuity of the blood stream.
Harry Olson,
Chief Justice.
[vi]
Preface
This volume is intended primarily for practical use. It is designed to
be of particular service to j four classes of personsT First, to law-makers^
who have to decide upon matters of policy to be worked out in legislation
regulating eugenical sterilization; second, to judges of the courts, upon
whom, in most of the states having sterilizatiori statutes, devolves the
duty of deciding upon the constitutionality of new statutes, and of deter-
mining cacogenic individuals and of ordering their sexual sterilization;
third, to administrative officers who represent the state in locating, and in
eugenically analyzing persons alleged to be cacogenic, and who are re-
sponsible for carrying out the orders of the courts; and fourth, to in-
dividual citizens who, in the exercise of their civic rights and duties,
desire to take the initiative in reporting for official determination and
action, specific cases of obvious family degeneracy.
The work is designed also as an historical record of the several types
of activities which characterized the early days of modern eugenical
sterilization, and of the later working out, through legislation, litigation,
experimental administration and scientific research, of a conservative
state policy in reference to eugenical sterilization as an aid in protecting
the country's family stocks from deterioration.
The facts here reported have been secured, and the analyses and prin-
ciples here given have been worked out during^thc^ast ten years. The
present study _was. .begun by the author in', 1911,: as secretary of a
committee appointed by the Eugenics Section of ^the American Breeders'
7rssociatiorr^'to~Stu3y and to Report on the Best Practical Meaas., for
^Cutting Off the Defective Gerrn-Plajm in the Aujexlcan Population." Of
this committee,(^Ir^_Bleecker Van Wagenen was chairman-.\ He reported
a summary of the first j^ar's work to the First IhTerhafional Congress
of Eugenics in London in 1912. In Febftiary, 1914, under the authorship
of the secretary, it issued bulletins 10-a and 10-b of the Eugenics Record
Office, entitled respectively, "The Scope of the Committee's Work," and
"The Legal, Legislative and Administrative Aspects of Sterilization."
The statistics reported in this work are brought down to January 1,
1921, and the legal records to January 1, 1922. Great care has been taken
to insure completeness and accuracy of record and fact throughout the
study, and an attempt has been made to cover the whole field of policy,
legality and practice.
Thanks are due for hearty co-operation in securing the facts needed
for this work, to the superintendents of the custodial institutions in which
eugenical sterilizing operations have been performed, to state officials
[vii]
who willingly supplied copies of official records, to judges of the courts
of law before whom seven sterilization statutes have been tested, to the
attorneys-at-law who have generously given legal advice and opinions, to
many physicians who have been consulted in reference to the medical
aspect of the problem, to the scientific field investigators of the Eugenics
Record Office, to surgeons who have furnished case-records of persons
sexually sterilized, and to authors and publishers of the several text-books
on anatomy and surgery who have kindly permitted quotations in refer-
ence to the technique of given sterilizing operations.
Besides these many persons who have so generously aided the investi-
gations, special obligations are due to Dr. Charles B. Davenport, Director
of the Eugenics Record Office, for many constructive suggestions and for
constant encouragement throughout the investigations, and to Hon. Harry
Olson, Chief Justice of the Municipal Court of Chicago, for kindly
writing the foreword, for rendering an opinion on the legal aspects of
sterilization, which appears as Section 1 of Chapter IX, and for publishing
the whole of these studies under the auspices of the Psychopathic Labora-
tory of his court.
Harry Hamilton Laughlin.
Cold Spring Harbor, Long Island, N. Y., January 1, 1922.
[ viii 1
Contents
CHAPTER I.
Chronological List of Laws, Amendments, Executive Vetoes, Repeals, Official Legal
Opinions, Board Orders and Court Decisions Relating to Eugenical Sterilization
Previous to January 1, 1922.
CHAPTER IL
Analysis, by States, of Sterilization Laws Enacted Prior to January 1, 1922.
Page
1. Indiana 6
2. Washington.
a. First Statute 6
b. Second Statute 6
3. California.
a. First statute 6
b. Second statute 7
c. Amendment to second statute 7
d. Sterilization provision in act establishing Pacific Colony 8
4. Connecticut 8
5. Nevada ; 8
6. Iowa.
a. First statute 8
b. Second statute 9
c. Third statute 9
7. New Jersey , 10
/ i) New York .10
9. North Dakota 10
10. Michigan 1 ., 11
11. Kansas.
a. First statute 11
b. Second statute 13
12. Wisconsin 13
13. Nebraska 13
34. Oregon 13
15. South Dakota 13
CHAPTER III.
Texts and Legislative Records of the Eugenical Sterilization Laws.
A. Laws Enacted Prior to January 1, 1932.
1. Indiana 15
2. Washington.
a. First Statute 15
b. Second Statute 15
[ix]
EuGENiCAi, Sterilization in the United States /ie courts
3. California. ^^^^
a. First statute
b. Second statute
c. Amendment to second statute
d. Sterilization provision in act establishing Pacific Colony 19
4. Connecticut.
a. First statute ^^
b. Sterilization provision of first statute extended to Mansfield State
Training School and Hospital "
5. Nevada ^^
6. Iowa.
a. First statute ^^
b. Second statute ^^
c. Third statute ^^
7. New Jersey ^^
8. New York.
a. Statute 25
b. Repeal 26
9. North Dakota 26
10. Michigan 28
11. Kansas.
a. First statute 29
b. Second statute 30
12. Wisconsin 31
13. Nebraska 33
14. Oregon 33
15. South Dakota 34
B. Eugenical Sterilization Bills Vetoed.
1. Pennsylvania.
A. Veto of 1905.
a. Text of Bill 35
b. Veto Message '35
B. Veto of 1921.
a. Text of Bill 37
b. Veto Message 38
C. Notes on the Situation in Pennsylvania 39
2. Oregon.
A. Bill vetoed.
a. Text of Bill 40
b. Veto Message 40
B. Law revoked by referendum.
a. Text of law 41
b. Legislative and referendum record 42
3. Vermont.
a. Text of Bill 44
b. Veto Message 45
4. , Nebraska.
a. Text of Bill 46
b. Veto Message 47
JiuGENiCAi, Sterilization in vat Unitud States xi
^1 5. Idaho. Page
i a. Text of Bill ' 48
b. Veto Message 50
CHAPTER IV.
Statistical and Descriptive Summary of Eugenical Sterilization in the Several States.
I. Institutional Statistics and Official Reports and Opinions.
1.! California 52
3. Connecticut 61
3. Indiana 63
4. Iowa 64
5. Kansas 69
6. Michigan 73
7. Nebraska 74
8. Nevada 79
9. New Jersey .' . 80
lOy New York 81
11. North Dakota 87
12. Oregon 88
13. South Dakota 90
14. Washington 91
15. Wisconsin 92
11. Summary.
A. Statistical Summary to January 1, 1921.
a. States and institutions 96
b. Total number of eugenical sterilization operations in all fifteen states . . 96
1. By sex 96
2. By radicalness of operation 96
3. By classes 96
4. By states 96
5. By time 96
B. Descriptive Summary • 97
CHAPTER V.
Analysis of the Eugenical Sterilization Laws by Subject.
1. The Motives of the Sterilization Statutes.
A. The motive of heredity 99
B. Therapeutic motive 100
C. Punitive motive 101
2. Executive Agencies 102
3. Provisions for Making Family History Studies 104
4. Biological Criteria for Determining the Applicabilty of the Law to a Particular
Individual ; 104
5. Court Procedure Provided by the Several Sterilization Statutes 107
6. Legal Counsel for the State arid for Persons Nominated for the Operation.... 110
7.J Is the Consent of the Patient or Guardian a Necessary Pre-requisite to Legal
Eugenical Sterilization ? 110
8. Type of Operation and Manner of its Performance Ill
9, Bad Biology in the Eugenical Sterilization Statutes 113
xii EuGENiGAL Sterilization in the United States
Page
10. Mandatory and Optional Elements in the Laws 11*
11. Sexual Sterilization of Criminals ll''
12. Legal Liability of Executive Agents and Surgeons 1^*
13. Punishment for Dereliction in Executing the Law 1^5
14. Punishment for the Illegal Use of Sexual Sterilization 125
15. The Legal Aspect of Sexual Sterilization for Therapeutic Purposes 127
16. The Sexual Sterilization of Inmates of Custodial Institutions Prior to
their Release 128
17. Class Legislation 130
18. What Constitutes Due Process of Law in Eugenical Sterilization? 138
19. Records and Reports Required by Law 137
20. Costs and Appropriations 139
CHAPTER VI.
Analytical Outline of Litigation Groxving Out of the Several Eugenical Sterilization
Statutes Previous to January 1, 1922.
Introduction 142
1. Washington 142
2. New Jersey .■ 142
3. Iowa 143
4. Michigan 143
3. New York 144
6. Nevada 145
7. Indiana -. 145
8. Oregon 146
Summary: The Present Legal Status of Eugenical Sterilization 147
CHAPTER VII.
Detailed Review of Litigation Growing Out of the Several Eu^^enical Sterilization
Statutes.
PART I— WASHINGTON.
1. Superior Court 149
3. State Supreme Court.
a. Brief of Appellant 149
b. Brief of Respondent 152
c. Decision of Supreme Court 159
PART II— NEW JERSEY.
1. Board of Examiners.
a. Order for Sterilization 164
2. State Supreme Court.
a. Writ of Certiorari 165
b. On Certiorari — Reasons 165
c. Brief of Appellant 166
d. Brief of Defendants Igg
e. Brief of Elmore T. Elver, amicus curiae 172
f. Decision of Supreme Court 1^4
PART III— IOWA.
1. State Board of Parole.
a. Order for Sterilization ^.^g
XVUOJSJNICAI, STERILIZATION IN THE UniT^D STATES xiii
3. United States District Court. Page
a. Temporary Restraining Order 180
b. Bill of Complaint 181
c. Amendment to Bill of Complaint 183
d. Reports of Attorney-General 184
e. Minutes of Meeting of Board of Parole 185
f. Decision of District Court 186
g. Order for Temporary Injunction 190
3. United States Supreme Court.
a. Brief of Plaintiffs in Error 191
b. Supplementary Brief 198
c. Decision of Supreme Court of United States 200
PART IV-.MICHIGAN.
1. Probate Court of Lapeer County.
a. Notice by Board of Control to Guardian 203
b. Reply to Notice 204
c. Petition of Superintendent 204
d. Order Denying Petition 205
e.. Notice of Appeal 305
3. Circuit Court of Lapeer County.
a. Order Dismissing Appeal 206
b. Opinion of Circuit Judge 306
3. State Supreme Court.
a. Petition to Supreme Court 207
b. Order of Supreme Court 208
c Return of Respondent 209
d. Brief of Attorney-General as amicus curiae 209
e. Decision of Supreme Court 213
PART V— NEW YORK
1. State Board of Examiners.
a. Origin of Test Case 217
2. Supreme Court, Albany County.
a. Affidavit and Order Appointing Counsel 217
b. Summons and Complaint 219
c. Answer 221
d. Findings of Fact and Conclusions of Law 221
e. Exceptions of Defendant to Conclusions of Law 222
f. Opinion of Rudd, J 222
g. Judgment of Supreme Court 227
h. Notice of Appeal * 228
i. Stipulation for Settlement of Case 228
j. Order Settling Case 229
k. Stipulation Waiving Certification. 239
3. Appellate Division, Supreme Court.
a. Brief for Plaintiff-Respondent 329
b. Decision 234
xiv EUGENICAL STERIUZATION IN THE UnITED STATES
4. Court of Appeals.
234
a. Brief on Behalf of Defendants
b. Case Pending
PART VI— NEVADA.
1. District Court of the Fourth Judicial District of the State of Nevada.
a. Sentence
2. United States District Court in and for Nevada.
a. Petition of Plaintiff ^*®
b. Order to Show Cause and Restraining Order 247
24R
c. Answer
d. Stipulation ^^
e. Plaintiff's Brief 249
f . Decision of United States District Court 250
PART VII— INDIANA.
1. Circuit Court of Clark County.
a. Petition of Plaintiff 256
b. Consent of Next Friend 257
c. Demurrer Filed by Defendants 257
d. Demurrer overruled and excepted 257
e. Judgment 257
. f . Notice of Appeal 258
g. Praecipe for Transcript 258
8. State Supreme Court.
a. Appellant's Brief 258
b. Appellee's Brief 264
c. Judgment 269
PART VIII— OREGON.
1. State Board of Eugenics.
a. Record of Investigation 271
b. Findings 271
c. Order for Sterilization 272
3. Circuit Court for the County of Marion.
a. Demurrer 272
b. Brief of Defendant in Support of Demurrer 273
c. Points and Authorities (By Smith & Shields, and Allan Bynon, amicus
curiae, in support of defendant's demurrer) , , 279
d. Answering Brief of Plaintiff 283
e. Opinion of Percy R. Kelly and Geo. G. Bingham, Judges 287
f. Decision of the Circuit Court 889
CHAPTER VIII.
Case and Family Histories of Individual Subjects of Litigation Growing Out of the
Several Eugenical Sterilization Laws.
Introduction 291
1. Peter Feilen, moral pervert, Washington 292
2. Alice Stnith, epileptic and feeble-minded, New Jersey 292
EuGENicAiv Sterilization in the United States xv
Page
3. Rudolph Davis, felon, Iowa 304
4. Nora Reynolds, feeble-minded, Michigan 305
5. Frank Osborn, feeble-minded, New York 305
G. Pearley C. Mickle, moral pervert, Nevada 311
7. Warren Wallace Smith, moral pervert, Indiana 312
8. Jacob Cline, moral pervert, Oregon 318
CHAPTER IX.
Legal Opinion.
1. Opinion by Honorable Harry Olson, Chief Justice, Municipal Court of Chicago. 333
3. Official Opinion of the Attorney-General of California on the Asexualization
Law 334
3. Opinion of the Attorney-General of Connecticut on the Asexualization Act.... 338
4. Additional Opinion by the Attorney-General of Connecticut 333
5. Opinion by Louis Marshall, Esquire 334
6. Brief by Charles A. Boston, Esquire 336
Summary 336
CHAPTER X.
The Right of the State to Limit Human Reproduction in the Interests of Race
Betterment.
Introduction 338
A. Parallel Cases of the Restriction of Personal Liberty in the Interests of the
General Welfare.
1. Compulsory Vaccination 339
3. Quarantine 341
B, Legislative and Judicial Activities Regulating or Limiting Human Repro-
duction.
1. Limitation of Marriage 343
a. List of legal limiting causes 343
b. The special case of venereal and other transmissible diseases.
bl. Analysis of laws limiting marriage on account of venereal or other
transmissible diseases 343
b2. Constitutionality of the Wisconsin statute requiring certificate of
health for males before marriage license is issued 344
c. Judicial annulment of marriage in the interest of public health
and racial welfare 345
cl. Wisconsin Supreme Court 345
c3. New York Court (New York County) 345
c3. New Jersey Court of Chancery (concealment of insanity) 346
c4. New Jersey Court of Chancery (concealment of venereal disease).
2. Birth Control 346
a. Review of criminal statutes on Birth Control: Judge J. C. Ruppenthal 347
b. Conclusions 348
3. Control of Immigration ' 349
4. Institutional Segregation of Social Inadequates 350
a. Quotation from Dr. Henry M. Hurd 350
b. Conclusion ,. 351
xvi EuGENiCAi. Steriuzation in thb United States
Page
5. Eugenical Sterilization.
„> a. Cases of Eugenical Sterilization in States having neither autflorizing
nor restricting statutes 351
al. Case of M H of Massachusetts 352
a3. Case of "X" of Illinois 354
b. Legal Situation in England 355
bl. Would it be lawful to sterilize? 355
b3. Who should operate? 356
b3. Penalties for wrongfully operating 356
Conclusion ; 356
C. Possible New Fields for Eugenical Legislative Activity 356
I. Eugenical Education 356
8. Compulsory Reporting of Cases of Cacogenesis 357
3. Registering Trained Eugenical Investigators 358
Summary 359
CHAPTER XL
Eugenical Diagnosis.
A. Guiding Principles for the Determination of Potential Parenthood of Socially
Inadequate Offsoring.
I. General Factors of the Task 362
a. Pedigree-facts 362
b. Knowledge of heredity 363
c. Application 'of pedigree-facts to the rules of heredity 363
II. Notes on Practical Eugenical Diagnosis 364
{t. Divergence between personal qualities and breeding qualities 364
2. The individual of pure stock 364
3. The individual of mixed stock 364
'ij Range of individual breeding qualities 365
5. The complexity of hereditary traits or characters 365
6. Specific rules of inheritance.
a. Recessive traits 365
b. Dominant traits 365
c. Sex-linked traits 365
d. Other types of inheritance 366
7. Hereditary nature of the co-parent 366
8. Eugenical salvage — the separation of good trnits from bad in the same
individual 367
9. The faclor of environment 367
10. Eugenical standards.
a. The biological standard 368
b. The legal standard 368
U; Types of the socially inadequate 369
Ci^f Common sense and pedigree study 369
Summary 370
B. List of Characters in Man Classified According to Their Method of Inherit-
ance.
I. Traits which blend in the F, offspring 372
EuGENicAi, Sterilization in the United States xvii
Page
II. Traits showing dominance of one condition and recessiveness of the
allelomorph in the first generation and segregation in subsequent genera-
tions of offspring 373
III. Sex-linked traits 376
IV. Probably Mendelian, but dominance imperfect or uncertain 377
V. Clearly hereditary, but rule of inheritance uncertain 377
VI. Associated traits 380
C. Tables Showing Types of Matings and Offspring.
Type a. In case the defect is recessive 381
Type b. In case the defect is dominant 382
Type c. A sex-linked trait 383
Type d. A trait that blends 384
Type e. A composite trait 385
D. References.
1. Research Institutions 392
2. Societies 392
3. Universities and colleges with active departments of genetics 393
4. Custodial institutions for socially inadequate conducting field studies in
eugenics 393
5. Courts which have undertaken scientific eugenical studies 394
6. Journals 394
7. Books 394
CHAPTER XII.
The Anatomical and Surgical Aspects of Eugenical Sterilization.
Section A. Anatomy, Description of the Human Male and Female Reproduc-
tive Mechanisms and an Explanation of their Functions 397
a. Reproductive mechanism of the human male 398
b. Reproductive mechanism of the human female 402
Section B. Surgery. The Principal Types of Surgical Operations Used in Ef-
fecting Sexual Sterilization.
1. Male.
(1) Phallo-orchidectomy 407
(2) Phallectomy 407
(3) Castration (Orchidectomy) 409
(4) Spermectomy 410
(5) Vasectomy 410
(6) Ligation of the vas deferens 411
(7) X-ray treatment 413
2. Female.
(1) Pan-hystero-kolpectomy 414
(2) Hystero-salpingo-oophorectomy 414
(3) Oophoro-hysterectomy 414
(4) Hysterectomy 414
(5) Salpingo-oophorectomy 415
(6) Oophorectomy (ovariectomy, ovariotomy, castration, spaying) 415
(7) Curetting or cauterizing the intra-uterine tubal openings 417
(8) Salpingectomy 419
(9) Ligation of Fallopian Tubes 421
(10) X-ray treatment 421
Xviii EUGUNICAL SffiRII/IZATlON IN THE UNITED STATES
Summary. Page
a. Types of Eugenical Sterilization Available.
1. For the male 422
2. For the female 422
b. Future Methods 422
c. Weighing the Matter of Type of Eugenical Sterilization in Relation to
Eugenical Policy • 423
Appendix: Continence and Contraception 423
CHAPTER XIII.
The Physiological and Mental Effects of Sexual Sterilization.
Introduction 425
1. The Normal Course of Sexual Functions 425
2. Functions of the Sex-Glands, Other than Reproduction.
a. Male— Testes 425
b. Female — Ovaries 428
3. Classification of the Case-Histories 429
a. Type of social inadequacy 430
b. Sex 430
c. Age 430
d. Type of operation 431
4. Testimony on the Effects of Sexual Sterilization.
A. Primary Testimony 431
B. Supplementary Testimony 431
a. A. W. Wilmarth, M. D., Superintendent Wisconsin Home for Feeble-
minded 431
b. Havelock Ellis, from his book "The Sexual Impulse" 432
c. Robert Reid Rentoul, M. D., from his book "Race Culture or Race
Suicide" 433
d. Martin W. Barr, M. D., in his book "Mental Defectives" 433
c. F. C. Cave, M. D., Journal of Psycho- Asthenics 1911 ; 434
5. Summary:
A. Functions of the Sex-Glands 434
B. Effects of Sexual Sterilization.
I. Anatomical and physiological effects by sex, age and type of operation.
(A) Male.
(a) Vasectomy or its functional equivalent.
(1) Before puberty 434
(2) During adolescent and adult life 435
(3) In old age 435
(b) Castration.
(1) Before puberty 435
(2) During adolescent and adult life 435
(3) In old age 435
(B) Female.
(a) Salpingectomy or its functional equivalent.
(1 ) Before puberty 435
(2) During reproductive period 435
(3) After the climacteric 435
EuGENiCAL Sterilization in the United States xix
(b) Oophorectomy, Page
(1) Before puberty 435
(2) During reproductive period 435
(3) After the climacteric 435
II. General Summary of Evidence on the Mental and Temperamental
Effects of Sexual Sterilization 436
III. Summary of Evidence on Sexual Sterilization as a Therapeutic Agent... 436
CHAPTER XIV.
The Legal, Biological and Practical Requirements for an. Effective Eugenical
Sterilization Law.
Introduction 438
A. Commonly Stated Objections to the Existing Sterilization Laws.
1. In advance of public opinion 438
2. Violation of the Bill of Rights 438
3. Ill-adapted to their implied purposes , 439
4. Inadequate executive machinery «.,. 439
5. Lack of cooperation among sociologists 439
6. Encourages immorality 439
B. Requirements for an Effective Eugenical Sterilization Law.
a. Legal requirements.
1. Class legislation 440
3. Due process of law 441
3. Cruel and unusual punishment 442
4. Bill of attainder 443
5. Twice in jeopardy of life and limb , 442
6. Ex post facto , 443
b. Biological and eugenical requirements.
1. Standard for legal parenthood 443
2. The line of demarcation between eugenic and cacogenic 443
3. Insurance against reproduction by cacogenic persons 443
4. Development of eugenic standards 443
5. Suspension of order for eugenical sterilization 443
6. Adequate evidence of cacogenesis 443
c. Practical requirements.
1. Well-trained executive > 443
3. Due provision for prompt court procedure 443
3. Ample funds for enforcement 444
4. Due provision for modern surgical work 444
Conclusion • 444
CHAPTER XV.
Model Eugenical Sterilization Law.
A. Principles Suggested for a Standard State Law : 446
B. Full Text for a Model State Law.
Section 1. Short title 446
Section 2. Definitions.
a. Socially inadequate person 446
b. Socially inadequate classes 446
X3f EuGENicAi; Sterilization in the United States
Page
c. Heredity **''
d. Potential parent
e. To procreate
f. Potential parent of socially inadequate offspring **'''
g. Cacogenic person
h. Custodial institution **'
i. Inmate '
j. Eugenical sterilization "''
Section 3. Office of State Eugenicist **''
Section 4. Qualifications of State Eugenicist 447
Section 5. Term of office, appointment and responsibility 447
Section 6. Seal 447
Section 7. Duties of State Eugenicist.
a. Field surveys 448
b. Further examinations 448
c. Roster custodial institutions 448
d. Case-histories '. 448
e. Records, S'ate Eugenicist's Office 448
f. Other duties 448
Section 8. Cooperation by custodial institutions 448
Section 9. Power to administer oaths and make arrests 448
Section 10. Opinion of State Eugenicist 448
Section 11. Appointment of date for hearing 449
Section 13. Notification of parties concerned 449
Section 13. State's legal counsel 449
Section 14. Determination by jury 449
Section 15. Judgment 449
Section 16. Appeals 450
Section 17. Type of eugenical sterilization 450
Section 18. Manner of consummation 450
Section 19. Liability 450
Section 20. Illegal destruction of reproductive functions 450
Section 21. Punishment of responsible head of institution for dereliction 450
Section 22. Supremacy of this act 451
Section 23. When effective 451
C. The Federal Government and Eugenical Sterilization,
a. Principles suggested for a Federal Statute 451
b. Comment ' _ _ 45^
CHAPTER XVI.
Explanatory Comments on the Model Sterilization Law.
Introduction ...
P'"^f^" 454
Section 1. Short title ...
454
Section 3. Definitions.
a. Socially inadequate person
b. Socially inadequate classes ...
455
c. Heredity
455
d. Potential parent
■ 455
EUGENICAL STURIUZATION IN TH]J UniTED STATES Xxi
Page
e. To procreate 455
f. Potential parent of sccially inadequate offspring 455
g. A cacogenic person 456
h. Custodial institution , 456
i. . Inmate 456
j. Eugenical sterilization 456
Section 3. Office of State Eugenicist 456
Section 4. Qualifications of State Eugenicist 457
Section 5. Term of office, appointment and responsibility 457
Section 6. Seal 457
Section 1. Duties of State Eugenicist 457
Section 8. Cooperation by custodial institutions 458
Section 9. Power to administer oaths and to make arrests 458
Section 10. Opinion of State Eugenicist 458
Section 11. Appointment of date for hearing 458
Section 13. Notification of parties concerned 458
Section 13. The State's legal counsel 459
Section 14. Determination by jury 459
Section 15. Judgment 469
Section 16. Appeals 459
Section 17. Type of eugenical sterilization 459
Section 18. Manner of consummation 459
Section 19. Liability 460
Section 30. Illegal destruction of reproductive functions 460
Section 21. Punishment of responsible head of institution for dereliction 460
Section 23. Supremacy of this act 460
Section 23. When effective 460
Appendix: Appropriations 460
CHAPTER XVII.
Set of Forms Suggested for the Use of the State Eugenicist, the Courts, Private
Citizens, and Custodial Institutions in Administering the Model Eugenical
-^ , , T- Sterilization Law.
Model rorms.
1. Case Record by State Eugenicist 464
a. Historical record 466
b. Record of investigation by State Eugenicist 467
c. Report to State Eugenicist 467
2. Information or complaint by private citizen to State Eugenicist y^ i&t
3. Institutional record of individual inmate prepared for State Eugenicist..,<< . . . 468
4. Report of State Eugenicist (a. opinion, b. evidence, and c. petition)/? 469
5. Action begun by private citizen , 470
a. Individual petition to court - 470
b. Order of court denying private petition .' 471
c. Order of court to State Eugenicist to investigate a particular case 471
6. Hearing I 473
a. Proclamation appointing time and place for hearing 472
b. Summons of propositus 472
1. Summons to propositus in case such propositus is not an inmate of a
custodial institution and is personally capable of understanding the
nature of a summons 473
xxii EuGENiCAL Sterilization in the United States
Page
2. Order to guardian or custodian of propositus in case such propositus
is an inmate of a custodial institution or lives under guardianship in
the population at large ^'^^
3. Order for arrest and presentation to court of the person of the pro-
positus in case such propositus is neither an inmate of a custodial
institution, nor living under guardianship in the population at large
nor is capable of understanding the nature of a summons 474
c. Notification to Attorney-General 474
d. Instruction of Attorney-General to County Attorney 475
e. Appointment of legal counsel for the propositus 475
f. Notification of State Eugenicist 476
g. Subpoena for witnesses 476
h. Summons for jury 476
7. Judgment and order.
a. Verdict of jury 477
b. Judgment of the court 477
c. Order to State Eugenicist for the eugenical sterilization of a cacogenic
person in the population at large 478
d. Order to State Eugenicist for the eugenical sterilization of a cacogenic
person who is an inmate of a custodial institution 479
e. Order to responsible head of custodial institution 480
f. Order to State Eugenicist for the temporary suspension of an order
for eugenical sterilization 481
g. Order to a cacogenic person whose eugenical sterilization has been
temporarily suspended, to report periodically to the State Eupenicist 482
h. Order to State Eugenicist for the eugenical sterilization of a cacogenic
person, the original order for whose sterilization has been temporarily
suspended 483
8. Execution of Order.
a. Contract with surgeon or physician to eugenically sterilize.
1. A cacogenic person in the population at large 484
3. A cacogenic person who is an inmate of a custodial institution 485
b. Report of surgeon or physician to State Eugenicist 486
c. Return of State Eugenicist to court in case of the eugenical sterilization
of a cacogenic person in the population at large 487
d. Return of State Eugenicist to court in case of the eugenical sterilization
of a cacogenic person who is an inmate of a custodial institution 488
e. Semiannual return of State Eugenicist to the court in case an original
order for eugenical sterili2ation has been temporarily suspended 489
9. InstitutidJ^al data kept by State Eugenicist.
a. Roster of custodial institutions 490
b. Monthly institutional report to State Eugenicist of accessions and
losses ^ 492
10. Record of an {(Tidividual case of sterilization.
a. Case recordj of eugenical rterilization 493
11. Appropriations;.
a. Working jiraft of appropriations section to be inserted in the proper
place in t^e state's appropriation bills, according to the legislative practice
of the piirticular state 494
List of Illustrations
Page
Figure 1. Schematic Representation of Genital Tract in the Male 398
Figure 2. The Testis and its Coverings 399
Figure 3. The Structure of the Spermatic Cord 400
Figure 4. A Sectional View of the Testis 401
Figure 5. The Development of a Human Spermatozoon 403
Figure 6. Schematic Representation of the Genital Tract in the Female 403
Figure 7. The Ovary, Fallopian Tube and Uterus in Place 403
Figure 8. A Diagrammatic Section of the Human Ovary 404
Figure 9. A Mature Human Ovum 405
Figure 10. The Operation of Castration 409
Figure 11. The Operation of Vasectomy 410
Figure 12. The Abdominal Incision used in Salpingectomy and Oophorectomy 415
Figure 13. The Operation of Oophorectomy (Kelly-Noble) 416
Figure 14. The Operation of Salpingectomy (Warbasse) 419
Figure 15. The Operation of Salpingectomy (Margaret H. Smyth) 420
Pedigree Charts — Chapter 8
Pedigree Chart of Alice Smith 304A
Pedigree Chart of Warren Wallace Smith 320A
Pedigree Chart of the H . . . . Family of Massachusetts 353
xxm
CHAPTER I.
CHRONOLOGICAL LIST
OF LAWS, AMENDMENTS, EXECUTIVE VETOES, REPEALS. OFFICIAL
LEGAL OPINIONS, BOARD ORDERS, AND COURT DECISIONS
. RELATING TO EUGENICAL STERILIZATION PREVIOUS
TO JANUARY I. 1922.
Date.
State and Action.
Specific Nature of Official Action.
1. March 30, 1905...
2. March 9, 1907
3. February 23, 1909.
4. March 22, 1909...
5. April 26, 1909
6. August 12, 1909.. ,
7. March, 2, 1910...,
8. March 17, 1911...
9. April 10, 1911
10. April 21, 1911
11. September 30, 1911
12. April 16, 1912
13. May 31, 1912
14. September 3, 1912
15. December 9, 1912.
16. January 31, 1913..
17. February 18, 1913.
18. March 13, 1913...
19. March 14, 1913...
20. April 1, 1913
21. April 14, 1913.
23. April 19, 1913.
Pennsylvania. Veto. .
Indiana. Statute . . . .
Oregon. Veto ......
Washington. Statute .
California. Statute . .
Connecticut. Statute
California. Opinion .
Nevada. Statute
Iowa. Statute
New Jersey. Statute.
Washington. Order . .
New York. Statute
New Jersey. Order.
Washington. Court De-
cision
Connecticut. Opinion.,
Vermont. Veto
Oregon. Statute
North Dakota. Statute
Kansas. Statute
Michigan. Statute . . .
Nebraska. Veto
Iowa. Statute
Bill vetoed. (See p. 35.)
Chapter 215. (See p. 15.)
Bill vetoed. (See p. 40.)
Chapter 249, Sec. 35 Criminal Code. (See
P. 15.)
Chapter 730. (See p. 17.)
Chapter 209. (See p. 19.)
Attorney General of the State rendered
an opinion defending the constitutional-
ity of the Act of April 26, 1909. (See
p. 332.)
Section 28 Crimes and Punishments Act.
(See p. 31.)
Chapter 129. (See p. 31.)
Chapter 190. (See p. 23.)
Superior Court of King County, as an
additional punishment, ordered sterili-
zation by vasectomy of Peter Feilen.
(See p. 149.)
Chapter 445. (See p. 25.)
Board of Examiners ordered the steriliza-
tion by salpingectomy of Alice Smith,
an inmate of the State Village for Epi-
leptics at Skillman. (See p. 164.)
Supreme Court of State held the Act of
March 22, 1909, constitutional. (See
p. 159.)
Attorney General of the State rendered
an opinion upholding the constitutional-
ity of the Act of August 13, 1909. (See
P. 326.)
Bill vetoed. (See p 44.)
Chapter 63. To become effective June 3,
1913. (See p. 42.)
Chapter 56. (See p. 26.)
Chapter 305. (See p 29.)
Act No. 34. To become effective August
14, 1913. (See p. 28.)
Bill vetoed. (See p. 46.)
Chapter 187, Second Statute, also repeals
Act of April 10, 1911. (See p. 22.)
List of Laws, etc.. Relating to Eugenicai, Sterilization
Date.
State and Action.
Specific Nature of Official Action.
33. May 31, 1913
24. June 13, 1913
25. July 30, 1913
26. November 4, 1913.
27. November 18, 1913
Oregon. Referendum . .
California. Statute . . . .
Wisconsin. Statute . . . .
Oregon, Revocation . .
New Jersey. Court De-
cision
28. March 5, 1914
29. June 24, 1914.
30. June 1, 1915.
Iowa. Order
Iowa. Court Decision..
New York. Initiating
Test Case
31. July 4, 1915.
32. July 8, 1915
33. August 14, 1915...
34. September 17, 1915
Iowa. Statute . . . ,
Nebraska. Statute
Nevada. Order . . ,
New York. Court De-
Referendum for repeal of Law of Febru-
ary 19, 1913, duly invoked. Law held in
abeyance until decision. (See p. 41.)
Chapter 363, Second Statute, also repeals
Act of April 26, 1909. (See p. 18.)
Chapter 693. (See p. 31.)
Referendum duly jevoked Act of Febru-
ary 18, 1913. (See p. 42.)
Supreme Court of the State set aside the
order of the Board of Examiners of
May 31, 1912, for the sterilization by
salpingectomy of Alice Smith, an in-
mate of the State Village for Epileptics,
and held the Act of April 21, 1911, "un-
constitutional." (See p. 174.)
State Board of Parole ordered steriliza-
tion by vasettomy of Rudolph Davis,
No. 10,406, an inmate of penitentiary at
Fort Madison, twice convicted of felony.
(See p. 179.)
U. S. District Court, District of Southern
Iowa, Eastern Division, held the Act of
April 19, 1913, •'unconstitutional." (See
p. 186.)
Dr. Lemon Thompson of the ■ Board of
Examiners made application to the
Supreme Court — Albany County, for
the appointment of legal counsel to
defend Frank Osborn, an inmate of the
State Custodial Asylum, in a test case.
(See p. 217.)
Chapter 802, Third Statute, also repeals
Act of April 19, 1913. (See p. 23.)
Chapter 237. (See p. 32.)
Fourth Judicial Court of Nevada (County
of Elko) ordered as an additional
punishment the sterilization by vasecto-
my of Peariey C. Mickle. (See p. 243.)
State Supreme Court — Albany County,
held the statute "unconstitutional and
invalid" and issued an order in which
the Board of Examiners was "perpetu-
ally enjoined and restrained from per-
forming or permitting to be performed
the aforesaid threatened operation."
(See p. 221.)
List op Laws, etc.. Relating to Eugenicai, Sterilization
Date.
State and Action.
Specific Nature of Official Action.
35. May 4, 1916.
Michigan. Court De-
36. May 21, 1917...,.
37. May 26, 1917
38. July 1, 1917
39. July 26, 1917
40- July 31, 1917
41. September 10, 1917
43. January 15, 1917.,
Oregon. Statute
Kansas. Statute
South Dakota. Statute.
California. Statute . . . .
California. Statute . . . .
Michigan. Court De-
cision
Iowa. Court Decision.
43. March 8, 1918
New York. Court De-
cision
44. March 28, 1918.
Michigan. Court De-
cision
45. May 25, 1918.
Nevada. Court Decision
Probate Court of Lapeer County denied
the petition of the Michigan Home and
Training School at Lapeer to order the
sterilization of Nora Reynolds, an in-'
mate of said institution, on the ground
that the Act of April 1, 1913, is un-
constitutional. (See p. 203.)
Chapter 279. (See p. 33.)
Chapter 299. (See p. 30.)
Chapter 236 (S. B. 257.) (See p. 34.)
Chapter 489, Amends the Act of June 13,
1913. (See p. 18.)
Section 42, Chapter 776. (See p. 19.) Ex-
tended provisions of Sterilization Law
to the Pacific Colony.
Order of Circuit Court of Lapeer County
sustaining decision of Probate Court of
same County that the Act of April 1,
1913, is "unconstitutional." (See p. 206.)
The U. S. Supreme Court reversed the
decision of June 24, 1914, of the District
Court because meanwhile (July 4, 1915)
Iowa repealed the Act of April 19, 1913,
and enacted a new (the third) steriliza-
tion statute. Case not tried on its
merits. (See p. 200.)
At a Special Term, the Supreme Court of
Albany County sustained the findings
of September 17, 1915, of the same
court, perpetually enjoining the Board
of Examiners from sterilizing by vasec-
tomy Frank Osborn, an inmate of the
Rome Custodial Asylum, and holding
the Act of April 16, 1912 "unconstitu-
tional and invalid." (See p. 221.)
State Supreme Court sustained decision
of Probate Court of Lapeer County of
May 4. 1916, and of Circuit Court of
the same county of September 10, 1917,
that the Act of April 1, 1913, is uncon-
stitutional. (See p. 213.)
The U. S. District Court in and for the
District of Nevada held the Nevada
Act of March 17, 1911 "unconstitu-
tional." (See p. 245.)
List o? Laws, Utc, Relating to Eugenical Sterilization
Date.
46. July 1, 1918.
47. March 18, 1919.
48. April 3, 1919...
49. December 4, 1919.
50. May 10, 1930.
51. May 11, 1931.
5k May 35, 1981
53. January 37, 1931.
54. March 8, 1931
55. December 13, 1931
State and Action.
New York. Court De-
cision
Idaho. Veto
Connecticut. Statute
Indiana. Court Decision
New York. Statute Re-
pealed
Indiana. Court Decision
Pennsylvanj^. Veto . . .
Oregon. Order
Washington. Statute . .
Oregon. Court Decision
Specific Nature of Official Action.
Supreme Court, Appellate Division, Third
Department. "Judgment unanimously
affirmed on the opinion of Rudd, J., at
Special Term." (See p. 234.)
Bill vetoed. (See p. 50.)
Chapter 69 Public Acts of 1919 (see p.
19). Extended the provisions of the
Sterilization Law to the Mansfield
State Training School and Hospital.
(See p. 30.)
Circuit Court of Clark County held
"Vasectomy Law" (Chap. 315, 1907)
unconstitutional. Judge James W. For-
tune. (See p. 257.)
L. 1920. Chap. 619. (See p. 26.)
State Supreme Court (No. 23,709, Appeal
from Clark County Circuit Court).
Sustained the decision of the Trial
Court holding the "Vasectomy Law"
(Chap. 215, 1907) unconstitutional. (See
p. 358.)
Bill vetoed. (See p. 38.)
Oregon State Board of Eugenics ordered
the sterilization of Jacob Cline, an in-
mate of the Oregon State Penitentiary.
(See p. 272.)
Chapter 53 of the Session Laws of 1921,
H. B. 190. (See p. 15.)
Circuit Court of the State of Oregon for
the County of Marion held the statute
of February 19; 1917, unconstitutional.
(See p. 289.)
CHAPTER II.
ANALYSIS, BY STATES, OF STERILIZATION LAWS ENACTED
PRIOR TO JANUARY 1, 1922
1. Indiana 6
3. Washington:
a. First Statute 6
b. Second Statute 6
3. California:
a. First Statute 6
b. Second Statute 7
c. Amendment to Second Statute 7
d. Sterilization Provision in Act establishing Pacific Colon; 8
4. Connecticut 8
5. Nevada 8
6. Iowa:
a. First Statute 8
b. Second Statute 9
c. Third Statute 9
7. New Jersey 10
8. New York 10
9. North Dakota 10
] 0. Michigan • 11
11. Kansas:
a. First Statute 11
b. Second Statute 13
12. Wiscon.sin : 13
13. Nebraska 13
14. Oregon 13
15. South Dakota 13
Analysis, by States, of Sterilization Laws
1. INDIANA.
Date of Approval of Statute. March 9,
1907.
Reference in State Laws. Chapter 215,
Laws of 1907.
Persons Subject. Inmates of all State in-
stitutions who are deemed by a commis-
sion of three surgeons to be unimprovable,
physically and mentally, and unfit for procre-
ation.
Executive Agents Provided. For each
subject institution a Committee of Experts,
consisting of two skilled surgeons of recog-
nized ability, who shall act in conjunction
with the regular institution physician and
Board of Managers for the particular insti-
tution.
Basis of Selection: Procedure. I nad vis-
ability of procreation and improbability of
improvement of mental and physical condi-
tion, in judgment of Committee of Experts
and Board of Managers of the institution.
Type of Operation Authorized. "Such
operation for the prevention of procreation
as shall be decided safest and rriost effective."
State's Motive. Purely eugenic.
Appropriations Available for Enforcing
the Act. "In no case shall the consultation
fee be more than $3.00 to each expert to be
paid out of the funds appropriated for the
maintenance of the institution."
Present Legal Status, January 1, 1922.
AftP"- Ji?- !,ig been a dead letter since the
iiid ^ of Governor Thomas R. Mar-
shall in 1909, this law was tested by the
courts and declared unconstitutional May 11,
1921, by decision of the State Supreme Court.
2. WASHINGTON.
(a.) First Statute.
Date of Approval of Statute. March 22,
1909.
Reference in State Laws. Chapter 240,
Section 35, Criminal Code Statutes of 1909.
Persons Subject. Habitual criminals and
persons adjudged guilty of carnal abuse of
female persons under ten years of age, or of
rape. /
Executive Agencies Provided. The CourU
passing sentence for offense may in addition
direct operation to be performed.
Basis of Selection: Procedure. Charac-
ter of subject and his previous unsocial acts.
' of Operation Authorized. "An op-
for the prevention of procreation."
State's Motive. Purely punitive.
Appropriations Available for Enforcing
the Act. No provision made for special ap-
propriation.
; Present Legal Status, January 1, 1922.
Iconstitutional by decree of State Supreme
yCourt September 3, 1912.
(b.) Second Statute.
Date of Approval of Statute. March 8,
1921.
Reference in State Laws. Chapter 53, of
the Session Laws of 1921.
Persons Subject. Feeble-minded, insane,
epileptic, habitual criminals, moral degen-
erates and sexual perverts (in institutions)
showing hereditary degeneracy.
Executive Agents Provided. The institu-
tional Board of Health.
Basis of Selection. Inadvisability of pro-
creation and improbability of improvement
in condition of the subject, in the judgment
of said Board, after due consideration.
Basis of Procedure. Order of Board
served on inmate or legal guardian. Inmate
or guardian may make appeal within fifteen
days to Superior Court of county in which
institution is located. No operation shall be
performed until expiration of time for appeal
or, if appealed, until decision of court or jury.
Type of Operation Authorized. "Such
surgical operation for sexual sterilization as
may be specified in the order of the Institu-
tional Board of Health" and "to be per-
formed with due regard for the physical
condition of the inmate and in a safe and
humane manner."
State's Motive. Primarily eugenic and
secondarily for the personal benefit of the
inmate.
Appropriations Available for Enforcing the
Act. "The State shall be liable only for the
actual traveling expenses of the members of
the Board incurred in the performance of
their duties," such expenses to be paid "from
the moneys appropriated for the maintenance
of the institution."
/Present Legal Status. January 1st, 1922.
^Not tested by courts.
3. CALIFORNIA.
(") First Statute.
Date of Approval of Statute. April 26,
1909.
Analysis, by State;s, of Steriwzation Laws
Reference in State Laws. Chapter 270, Sta-
tutes of 1909.
Persons Subject. Inmates of State hospi-
tals and home for feeble-minded, and in-
mates of State prisons committed for life, or
showing sex or moral perversions, or twice
committed for sexual offenses, or three
times for other crimes.
Executive Agencies Provided. Board con-
sisting of superintendent or resident phy-
sician of each subject institution in consulta-
tion with the general superintendent of State
hospitals and the secretary State Board of
Health.
Basis of Selection: Procedure. Decision
by entire board or any two of them that
asexualization will be beneficial, or conducive
to the benefit of the physical, mental or
moral condition of the inmate.
Type of Operation Authorized. "Asex-
ualization."
State's Motive. Mainly eugenic, also for
the physical, mental or moral benefit of in-
mate, also partly punitive in certain cases.
Appropriations Available for Enforcing
the Act. No provision made for special
appropriation.
• Legal Status, January 1, 1922. Constitu-
tional by decree of State Supreme Court,
September 3, 1912,
(b.) Second Statute.
Date of Approval. June 13, 1919. (Re-
peals first statute, April 26, 1909.)
Reference in State Laws. Chapter 363,
Statutes of 1913.
Persons Subject. Inmates of State hospi-
tals and home for feeble-minded and recidi-
visits of all prisons of the State. Act does not
apply to voluntary patients in State hospitals.
Executive Agencies Provided, (a) State
Commission in Lunacy, for the insane, (b)
Resident Physician of the particular State
prison, the general superintetident of State
hospitals and secretary State Board of
Health, for recidivists, (c) Medical Super-
intendent of any State hospital, for "idiots
and fools."
Basis of Selection: Procedure. Discre-
tion of the commission before the release of
persons ''affected with hereditary insanity or
incurable chronic mania or dementia." Dis-
cretion of resident physician of any State
prison in consultation with the general super-
intendent of State hospitals and secretary
of the State Board of Health in cases of
recidivists; provided asexualization would
benefit such recidivist, and that such recidi-
vist has been twice convicted for sexual
offenses, or three times for any other crime
in any State or country. Discretion of the
medical superintendent of any hospital may
asexualize any minor, "idiot or fool" under
his care, with the written consent of the
parent, or guardian if such "idiot or fool"
be an adult, and said medical superintendent
shall perform such operation at the request
of such parents or guardians.
Type of Operation Authorized. "Asexuali-
zation."
State's Motive. Mainly eugenic, also in
some cases therapeutic and punitive.
Appropriations Available for Enforcing
the Act. No provision made for special
appropriation.
Present Legal Status, January 1, 1922.
Not tested by courts.
(c.) Amendment to Act of June 13, 1913.
Date of Approval of Statute, May 17, 1917.
Reference in State Laws. Chapter 489,
Laws of 1917.
Persons Subject. Any person who has
been lawfully committed to any State hospi-
tal for the insane, or who has been an inmate
of Sonoma State Home, and who is afflicted
with mental disease which may )i • . ". j,!
inherited and is likely to be transmitted to
descendants, the various grades of feebk
mindedness, those suffering from perversion
or marked departures from normal mental-
ity, or from diseases of a syphilitic nature.
Executive Agencies Provided. State Com-
mission in Lunacy, for the insane. Resident
Physician of the respective State prisons,
the general superintendent of State hospitals
and secretary State Board of Health for
recidivists. Medical superintendent of any
State hospital for "idiots or fools."
Basis of Selection: Procedure. Discre-
tion of Commission before release of a
person afflicted with mental disease which
may have been inherited and is likely to be
transmitted to descendants, the various
grades of feeble-mindedness, those suffering
from perversion or marked departures from
normal mentality or from diseases of a
syphilitic nature.
Type of Operation Authorized. "Asex-
ualization."
State's Motive. Purely eugenic.
Appropriations Available for Enforcing
the Act. No provision made for special
appropriation.
Present Legal Status, January 1, 1922.
Not tested by courts.
8
AnAi:,ysis, by States, of Stbriwzation Laws
(df) Sterilization Provision in Act estab-
lishing Pacific Colony.
Date at Approval of Statute. June 1, 1917.
Reference in State Laws. Section 42,
Chapter 776, Laws of 1917.
Persons Subject. Any inmate of Pacific
Colony and who is feeble-minded or is
afflicted with incurable chronic mania or de-
mentia.
Executive Agencies Provided. Board of
Trustees, on the recommendation of the
superintendent approved by a clinical psy-
chologist holding degree of Ph.D., and a
physician qualified to serve under Section
19 of this Act.
Basis of Selection: Procedure. Discre-
tion of Commission before release of a
person who is feeble-minded or is afflicted
with incurable chronic mania or dementia.
Type of Operation Authorized. "Sterili-
zation."
State's Motive. Purely eugenic.
Appropriations Available for Enforcing
the Act. No provision made for special
; 'iropriation.
Present Legal Status, January 1, 1922.
Not teste?d by courts.
4. CONNECTICUT.
Date of Approval of Statute. August 13,
1909.
Reference in State Lawrs. Chapter 209,
Public Acts of 1909.
Persons Subject. Inmates of State
prisons and of State hospitals at Middletown
and Norwich.
Executive Agencies Provided. Board of
three surgeons, consisting of the resident
physician and two others appointed by the
superintendent of the particular institution,
one member of said board appointed to per-
form operation.
Basis of Selection: Procedure. Decision
by majority of Board, after examining the
mental and physical condition of the subject,
his record and family history, of the improb-
ability of improvement of the physical and
mental condition and the consequent inadvis-
ability of procreation, or of the probability
of substantial improvement of the mental
and physical condition of subject thereby.
Type of Operation Authorized. ."Vasect-
omy or Oophorectomy in a safe and humane
manner." For operations, except as author-
ized by law, a fine of not more than $1,000
or 5 years' imy-i .unment, or both, is pro-
vided.
State's Motive. Mainly/ eugenic, also
therapeutic. /
Appropriations Available for Enforcing
the Act. Board making /such examination
and surgeon performing such operation shall
receive from the State such; compensation for
services rendered as warden of State prison
or superintendent of either such hospital shall
deem reasonable.
/Present Legal Status, i January 1, 1922.
I Constitutional according to the opinion of
the Attorney General of the State, December
9, 1912. (Not tested hy courts.
5. NEVADA.
Date of Approval of Statute. March 17,
1911.
Reference in State Laws. Section 28,
Crimes and Punishment Act.
Persons Subject. Habitual criminals, and
persons adjudged guilty of carnal abuse of
female persons under ten years of age.
Executive Agencies Provided. The Court
passing sentence for offense may in addition
direct the operation to be performed.
Basis of Selection: Procedure. Character
of subject and his previous unsocial acts.
Type of Operation Authorized. "An
operation for the prevention of procreation,
except castration."
State's Motive. Purely punitive.
Appropriations Available for Enforcing
the Act. No provision made for special
appropriation.
/ Present Legal Status, January 1, 1923.
/ Unconstitutional by decision of Federal Dis-
\ trict^Coiirt, May 25, 1918.
'''" ^~ 1
6. IOWA.
(a.) First Statute. j
Date of Approval. Ajiril 10, 1911.
Reference in State Ls|ws. Chapter 129,
Acts of 34th General Assembly, 1911.
Persons Subject. Inmajes of public insti-
tutions for criminals, idipts, feeble-minded,
imbeciles, drunkards, drug fiends, epileptics,
syphilitics, etc. *
Executive Agencies Provided. Board con-
sisting of the managing officer and surgical
superintendent of each institution with mem-
bers of State Board of Paftle; the operation
being performed by the surgeon of the insti-
tution.
Analysis, by States, of Sterilization L,aws
Basis of Selection: Procedure. Decision
by a majority of board, after examining
mental and physical condition of subject, of
the improbability of mental or physical im-
provement, and the consequent inadvisability
of procreation, or of the probable substantial
improvement thereby, or continual evidence
on part of subject of being a moral or sexual
pervert.
Type of. Operation Authorized. Vasec-
tomy or salpingectomy. For operations,
except as authorized by this Act, punishable
by fine of "'not more than $1,000, or impris-
onment in the penitentiary, not to exceed
one year, or both."
State's Motive. Mainly eugenic, also
punitive in cases of certain felons and sex
offenders, also therapeutic.
Appropriations Available for Enforcing
the Act. No provision made for special
appropriation.
,' Present Legal Status, January 1, 1922.;
(Repealed^ ApriLlO, 1913. _^-
(b) Second Statute.
Date of Approval. April 19, 1913. (Re-
peals first statute, April 10, 1911.)
Reference in State Laws. Chapter 187,
Acts of 35th General Assembly, 1913.
Persons Subject. Inmates of public insti-
tutions for criminals, rapists, idiots, feeble-
minded, imbeciles, lunatics, drunkards, drug
fiends, epileptics, syphilitics, moral and
sexual perverts, and diseased and degenerate
persons. Compulsory in cases of persons
twice convicted of felony, or of sexual
offense other than "white slavery,'' for which
offense one conviction makes sterilization
mandatory.
Executive Agencies Provided. State
Board of Parole with the managing officer
and physician of each institution for their
respective institutions. Upon application to
the Board of Parole or to any judge of the
district court, by persons afflicted with
syphilis or epilepsy, said board or court may
authorize vasectomy or salpingectomy as
the case may be. Upon submitting to such
operation by one of the contracting parties
and making said fact known to the second
party, the law restricting marriage of such
persons shall be void. Board "directed to
examine annually or oftener" the mental and
physical condition and family history of
inmates of institutions with the view of de-
termining the prospects of procreation by
such individuals, and to report annually to
the governor the proceeding "and also
observation and statistics regarding its
benefit.''
Basis of Selection: Procedure. Decision
by a majority of special board (Board of
Parole, managing officer and physician of
institution) that procreation by inmate would
produce children with a tendency to disease,
degeneracy, deformity or that physical or
mental condition of inmate would be im-
proved thereby, or that inmate is a sexual
or moral pervert, operation to be performed
by the physician of the institution, or by one
selected by him.
Type of Operation Authorized. Vasec-
tomy or salpingectomy. For operations, ex-
cept as authorized by this Act, punishable
by fine of "not more than $1,000, or impris-
onment in the penitentiary, not to exceed
one year, or both."
State's Motive. Mainly eugenic, also
punitive in cases of certain felons and sex-
offenders, also therapeutic.
Appropriations Available for Enfott ■•
the Act. No provision made for special
appropriation.
Present 'Legal Status, January 1, 1922.
Repealed April 16, 1915, after having been
decided unconstitutional by Federal Distric
Court, June 34, 1914.
(c) Third Statute.
Date of Approval. April 16, 1915. (Re-
peals second statute April 19, 1913.)
Reference in State Laws. Chapter 303,
Acts of 36th General Assembly, 1915.
Persons Subject. Institutional inmates
afflicted with insanity, idiocy, imbecility,
feeble-mindedness, or syphilis.
Executive Agencies Provided. The super-
intendent of any hospital for the insane and
a majority of his medical staff, with the
approval of the Board of Control or a ma-
jority of the members thereof.
Basis of Selection: Procedure. Decision
of superintendent and his medical staff that
it is for the best interests of the patient and
society, with written consent of husband or
wife, parent, guardian or next of kin.
Type of Operation Authorized. Vasec-
tomy or salpingectomy. Operations ex-
cept as authorized by this Act, punishable
by a fine of "not more than $1,000 or impris-
onment in penitentiary, not to exceed one
year, or both."
State's Motive. Mainly eugenic, or puni-
tive in cases of certain felons and sex
offenders, also therapeutic.
10
Analysis, by States, of Steriwzation Laws
Appropriations Available for Enforcing
this Act No provision made for special
appropriation.
Pies.ent Legal Status, January 1, 19i82.
Not '"si..;J by courts.
7. NEW JERSEY.
Date of Approval. April 21, 1911.
Reference in State Laws. Chapter 190,
Statutes of 1911.
Persons Subject. Inmates of State re-
formatories, charitable and penal institutions
(rapists and confirmed criminals.)
Executive Agencies Provided. Board of
Examiners, consisting of one surgeon, one
neurologist, each of recognized ability, ap-
pointed- by the governor by and with the
advice of the Senate, acting in conjunction
with the Commissioner of Charities and Cor-
rections; any person qualified under the laws
of the State under direction of chief physician
of institution being allowed to perform oper-
ation, orders subject to review by Supreme
Court, or any justice thereof.
Basis of Selection: Procedure. Unani-
mous decision of board in conjunction with
chief physician of the institution, after
examining the mental and physical condition
of subject, of the improbability of improve-
ment of his condition and the consequent
inadvisability of procreation.
Type of Operation Authorized. "Such
operation for the prevention of procreation
as shall be decided by said Board of Examin-
ers to be most effective."
State's Motive. Purely eugenic.
Appropriations Available for EMorcing
the Act. There shall be paid out of the
funds appropriated for maintenance of such
institutions to each physician of said board
of examiners, a compensation of not more
than $10.00 per diem, for each day actually
given to such work or examination, and his
actual and necessary expenses in going to,
holding and returning from such examina-
tion." The judge of Court of Common
' Pleas appointing any counsel under this Act
may fix compensation to be paid him, and
it shall be paid, as other court expenses are
now paid.
Present Legal Status, January 1, 1922.
Declared unconstitutional by State Supreme
Court, V /ember 18, 1913.
8. NEW YORK.
Date of Approval. April 16, 1913.
Reference in State Laws. Chapter 445,
Laws of 1912.
Persons Subject. Inmates of State hos-
pitals for the insane, State prisons, reforma-
.tories, and charitable institutions,, and rapists,
and confirmed criminals in penal institutions.
Executive Agencies Provided. Board of
Examiners, consisting of one surgeon, one
neurologist, one practitioner of medicine
appointed by governor for five years, one
of its members being appointed by the Board
to perform operation. All orders shall be
subject to review by Supreme Court or any
justice thereof.
Basis of Selection: Procedure. Decision
by majority of board, after examining
mental and physical condition of subject, his
record and family history, of the improbabil-
ity of improvement of his condition and the
consequent inadvisability of procreation or
of the probability of substantial improvement
of subject's condition thereby.
Type of Operation Authorized. Any
operation for the prevention of procreation.
Type determined by the Board of Examin-
ers. Except for medical necessity, unauthor-
ized operation constitutes a misdemeanor.
State's Motive. Purely eugenic.
Appropriations Available for Enforcing
the Act. "The compensation shall be $10.00
per diem for each day actually engaged in
performance of duties of the board, and their
actual and necessary traveling expenses."
Judge of court appointing counsel under this
Act may fix compensation to be paid him.
$5,000 appropriated for 1913-14.
Present Legal Status, January 1, 1922.
Declared unconstitutional by the Supreme
^ Court of Albany County, March 5, 1918, and
by Appellate Division July 1, 1918. Appeal
pending before the Court of Appeals when
the statute was repealed by the State Legis-
lature, May 10, 1920. (L. 1920. Chap. 619.)
9. NORTH DAKOTA.
Date of Approval. March 13, 1913.
Reference in State Laws. Chapter 56,
Laws of 191S.
Persons Subject. Inmates of State
prisons, reform school, school for feeble-
minded, and asylum or hospital for insane.
Executive Agencies Provided. Board,
consisting of chief medical officer of the
Analysis, by StateIs, of Sterilization Laws
11
particular subject institution, secretary of notice being given subject, with option of
State Board of Health and one competerim~. hearing in court.
physician and surgeon of good standing and
experience, who shall be appointed by State
Board of Control; the latter designating
some skilled surgeon, who may or may not
be one of their own number, to perform the
operation.
Basis for Selection: Procedure. Decision
of the board or even by the chief medical
officer of the institution, after examining
mental and physical condition of subject of
the improbability of physical or mental im-
provement, and the consequent inadvisability
of procreation, or of the probability of sub-
stantial improvement of subject's condition
thereby.
Type of Operation Authorized. "Surgi-
cal operation for sterilization.''
State's Motive. Mainly eugenic, also
therapeutic.
Appropriations Available for Enforcing
the Act. The per diem compensation of the
members appointed by the State Board of
Control shall be fixed by that board in the
letter of appointment, and shall not exceed
$10.00 per day, while in actual performance
of their duties; and the per diem, and actual,
and necessary expenses of such members
shall be allowed and paid in same manner
as is provided for by law for the payment
of salaries and expenses of members, agents
and employees of State Board of Control;
also the investigation and securing, at ex-
pense of county, transcripts of records of
convictions from other counties and States,
and also such evidence of identification as
may be obtained.
Present Legal Status, January 1, 1922.
^Not tested_by_ce4irtei
10. MICHIGAN.
Date of Approval. April 1, 1913.
Reference in State Laws. Act No. 34,
Public Acts of 1913.
Persons Subject. Inmates of State insti-
tutions maintained wholly or in part by
public expense.
Executive Agencies Provided. Board for
each institution to consist of the members
of the board of control of each particular
institution and the physicians or surgeons
in charge thereof; such board to direct
some competent physician or surgeon to
perform operation. " -"•t an institution
has no physician at ■■ bard of Mana-
gers may hire operatic >rmed, 30 days'
Basis for Selection: Procedure. Decision
by a majority of the board, after examining
physical and mental condition of subject, of
the improbability of improvement of mental
or physical condition, and the consequent
inadvisability of procreation or of the prob-
ability of substantial improvement of the
subject's condition thereby.
Type of Operation Authorized. Vasec-
tomy or salpingectomy, in a safe and humane
manner, or improvements thereon less
dangerous to life. For operation, except as
authorized by this Act, or for medical neces-
sity, punishable by fine, not more than $1,000
or imprisonment for not more than 5 years,
or both.
State's Motive. Mainly eugenic, also
therapeutic.
Appropriations Available for Enforcing
the Act. The institution physician or sur-
geon performing operation shall receive no
compensation therefor; if any surgeons are
hired, these shall be allowed for their serv-
ices the compensation fixed by the statutes,
for the examination and certification of an
insane person. The several sums necessary
to carry out the provisions of this Act shall
be paid out of general fund of State, upon
the warrant of the auditor-general.
|~~Present Legal Status, January 1, 1922.
Declared unconstitutional .by State Supre"-" j
Court, March 28, 1918.
11. KANSAS.
(a) First Statute.
Date of Approval March 14, 1913.
Reference in State Laws. Chapter 305
Session Laws of 1913.
Persons Subject. Inmates of all State in-
stitutions entrusted with the care or custody
of habitual criminals, idiots, epileptics, im-
beciles and insane; "habitual criminal" to
mean "a person who has been convicted of
some felony involving moral turpitude."
Executive Agencies Provided. By an au-
thority "'consisting of the managing officers
of each and every institution of the State in
conjunction with competent surgical assist-
ants, who shall report its conclusions to the
district court, or any court of competent
jurisdiction,, in or for the district, from
which such inmate has been committed; the
final order of sterilization lying with the
court, who shall appoint one of the 'author-
ity' to perform operation."
12
Analysis, by States, of Sterii<ization Laws
Basis for Selection: Procedure. Final
order of the court to which have been re-
ported the conclusions of the "'authority,''
after examining the physical and mental con-
dition of the subject, his record and family
history, to the effect that the subject's con-
dition is deemed unimprovable, and conse-
quently procreation will be undesirable; or
that the subject's condition will be substan-
tially improved thereby.
Type of Operation Authorized. Vasectomy
or oophorectomy in a safe and humane man-
ner. For operations, except as authorized
by law, or for medical necessity, fine of
$1,000, or imprisonment for one year, or
both, is provided.
State's Motive. Mainly eugenic, also ther-
apeutic.
Appropriations Available for Enforcing
the Act. "The surgeon performing opera-
tion shall receive from the State such com-
pensation for the service rendered as the
Board of Administration shall deem reason-
able— to be paid out of the maintenance
fund of the institution in which such person
is cr.'i fined."
Present Legal Status, January 1, 1922.
Repealed March 13, 1917. ^ ,
(b) Second Statute.
Date of Approval. March 13, 1917 (Re-
peals Act of March 14, 1913).
Reference in State Laws. Chapter 299,
Laws of 1917.
Persons subject. Inmates 'of State hos-
pitals for the insane. State hospital for epilep-
tics. State home for feeble-minded or State
school for girls.
Executives Agencies Provided. Chief
medical officer of any subject institution,
governing board of the institution and secre-
tary of the State Board of Health.
Basis for Selection: Procedure. Decision
of Examining Board that the mental or phy-
sical condition of any inmate would be im-
proved thereby or that procreation by such
inmate would be likely to result in defective
or feeble-minded children with criminal ten-
dencies, and that the condition of such in-
mate is not likely to improve so as to make
procreation desirable.
Type of Operation Authorized. "Vasec-
tomy or asexualization." "Salpingectomy or
oophorectomy." For operations, except as
authorized by law, a fine of not more than
.$500 and not less than $100, imprisonment
. .5t less than 6 months and not more than
^ year.
State's Motive. Therapeutic and eugenic.
Appropriations Available for Enforcing
the Act. If the physician is not connected
with such institution, the governing board
can make reasonable terms for compensa-
tion and such fee shall be paid from the fund
provided for the maintenance of such insti-
tution in the manner provided by law.
Present Legal Status, January 1, 1922.
Not tested by courts.
12. WISCONSIN.
Date of Approval. July 30, 1913.
Reference in State Laws. Chapter 693,
Laws of 1913.
Persons Subject. Inmates of »11 State and
county institutions for criminal, insane,
feeble-minded and epileptic persons.
Executive Agencies Provided. Special
Board, consisting of "one surgeon and one
», » * » «.
alienist of recognized ability,
conjunction with superintendents of the State
and county institutions;" appointed by the
State Board of Control. Duty of special
board "to examine into the mental and
physical condition of persons legally con-
fined in all State and county institutions."
It "shall meet, take evidence and examine"
and shall report to the State Board of Health
its findings in cases duly nominated by said
Board of Control.
Basis for Selection: Procedure. Find-
ing by unanimous vote of special board that
"procreation is undesirable" by inmates
whose names are submitted to said board by
the State Board of Control, makes lawful
the performance of operations by authority
and only by authority of State Board of
Control.
Type of Operation Authorized. "Such
operation for the prevention of procreation
as shall be decided safest and most effective."
State's Motive. Purely eugenic.
Appropriations Available for Enforcing
the Act. a sufficient amount of money
to carry into effect the purpose of this sec-
tion, not to exceed two thousand dollars."
Expert's compensation by the State Board
of Control, which shall not exceed ten dol-
lars per day and expenses for days actually
coj^suxned in the periormance of duty.
( Present LegAgencieas, January 1, 1922.
V Not tested by \ chief t
Analysis, by States, op Stekiuzation Laws
13
13. NEBRASKA.
Date of Approval. Without signature of
Governor, July 8, 1915.
Reference in State Laws. Chapter 237,
Laws of 1915.
Persons Subject. Feeble-minded or in-
sane inmates of institutions for the feeble-
minded, hospitals for the insane, the peniten-
tiary, reformatory, industrial schools, indus-
trial home or other such State institution.
Executive Agencies Provided. Board of
Commissioners of State Institutions shall
designate five pliysicians from the medical
staff of state institutions under their juris-
diction, three of which physicians shall be
appointed from institutions for feeble-mind-
ed youth and the hospitals for the insane.
Basis for Selection: Procedure. Decision
by Board of Examiners that procreation by
such inmate would be harmful to society;
with written consent of husband or wife,
parent, guardian, or next of kin.
Type of Operation Authorized. "Such
operation •
for the prevention of pro-
creation as in the judgment of said Board
of Examiners shall be most appropriate to
each individual case."
State's Motive. Purely eugenic.
Appropriations Available for Enforcing
the Act. "Members of said Board of Exam-
iners shall receive no compensation for their
services as such examiners, but shall be re-
imbursed their actual and necessary travel-
ing expenses from funds of the respective
institutions whose inmates are examined by
them." ^
"Present Legal Status, January 1, 1922.
Not^Jes*eti"'by~ courts.
14. OREGON.
Date of Approval. February 19, 1917.
Reference in State Laws. Chapter 279,
General Laws of 1917.
Persons Subject. Feeble-minded, insane,
epileptic, habitual criminals, moral degener-
ates, and sexual perverts who may be in-
mates of institutions maintained by public
expense.
Executive Agencies Provided: State Board
of Eugenics, cjpmposed of State Board of
Health, Superintendent of Oregon State-
Hospital, Superintendent of Eastern Oregon
State Hospital, Superintendent of State In-
stitution for Feeble-Minded and Superin-
tendent of Oregon State Penitentiary.
Basis for Selection: Procedure: Inadvis-
ability of procreation and no probability of
improvement of mental condition in judg-
ment of a majority of the Board.
Type of Operation Authorized. "Such
type of sterilization as may be deemed best
by said board."
State's Motive. For betterment of physi-
cal, mental, neural or psychic condition of
inmate to protect society, and not in any
manner as a punitive measure.
Appropriations Available for Enforcing
the Act. "State" liable only for actual trav-
eling expenses of members of Board, in-
curred in performance of their duties, and
actual and necessary expense incident to the
investigations of said Board and appeal
therefrom.
Present Legal Status, January 1, 1922
Declared mrconstltb-tioTial- by . Circu'
for the County" of Marion, Defc. 13
15. SOUTH DAKOTA.
Date of Approval. March 8, 1917.
Reference in State Laws. Chapter 336
(S. B. 257), Law of 1917.
Persons Subject. Inmates of State Home
for Feeble-minded.
Executive Agencies Provided. State Board
of Charities and Corrections, Superintendent
of the subject institution, and the physician
of said institution or one selected by him.
Basis for Selection: Procedure. Inadvis-
ability of procreation and improbability of
improvement of mental condition in judg-
ment of Board and Superintendent.
Type of Operation Authorized. "The
operation of vasectofny or ligation of the
Fallopian tubes as the case may be."
State's Motives. Therapeutic and eugenic.
Appropriations Available for Enforcing
the Act. No provision made for special
appropriation.
Present Legal Status, January 1, 1922.
Not tested by courts.
CHAPTER III.
TEXTS AND LEGISLATIVE RECORDS OF THE EUGENICAL
STERILIZATION LAWS
A. Laws enacted prior to January 1st 1932.
1. Indiana •■ ^^
2. Washington :
a. First Statute 15
b. Second Statute IS
3. California:
a. First Statute 17
b. Second Statute 18
c. Amendment to Second Statute 18
d. Sterilization Provision in Act establishing Pacific Colon_y 19
4. Connecticut:
a. First Statute ". 19
b. Sterilization Provisions of First Statute extended to Mans-
field State Training School and Hospital 20
. 5. Nevada 20
6. Iowa:
a. First Statute 21
b. Second Statute 22
c. Third Statute 23
7. New Jersey 23
8. New York:
a. Statute 25
b. Repeal 26
9. North Dakota 26
10. Michigan 28
11. Kansas:
a. First Statute T 29
b. Second Statute 30
13. Wisconsin 31
13. Nebraska 32
14. Oregon 33
15. South Dakota 34
B. Eugenical Sterilization Bills Vetoed.
1. Pennsylvania:
A. Veto of 1905 36
a. Text of Bill 35
b. Veto Message 35
B. Veto of 1981 36
a. Text of Bill 37
b. Veto Message 38
C. Notes on the Situation in Pennsylvania 39
2. Oregon :
A. Bill Vetoed 40
a. Text of Bill 40
b. Veto Message 40
B. Law revoked by Referendum 41
a. Text of Law 41
b. Legislative and Referendum Record 42
3. Vermont 43
a. Text of Bill 44
b. Veto Message 45
4. Nebraska;
a. Text of Bill 46
b. Veto Message 47
5. Idaho:
a. Text of Bill 48
b. Veto Message !.■.!.'..!!!! 50
IvfiGiSLATivE Records of the Sterilization Laws
15
A. LAWS ENACTED PRIOR TO JANUARY 1, 1922, IN VARIOUS STATES.
1. INDIANA.
Date of Law: April 9, 1907.
The bill was introduced on January 29,
1907, by Representative Horace D. Read,
of Tipton, Ind.
It passed the House February 19, 1907 —
59 ayes, 22 noes; the Senate March 6, 1907
— 28 ayes, 16 noes.
It was declared unconstitutional May 11,
1921, by the Supreme Court.
It appears on the Indiana laws of 1907 as
Chapter 215, on page 377; Burns' Indiana
Statutes 1908, sec. 2232.
AN ACT to prevent procreation of con-
firmed criminals, idiots, imbeciles and
rapists. Providing that superintendents or
boards of managers of institutions, where
such persons are confined, shall have the
authority and are empowered to appoint a
committee of experts, consisting of two phy-
sicians, to examine into the mental condition
of such inmates.
WHEREAS, Heredity plays a most im-
portant part in the transmission of crime,
idiocy, and imbecility:
Therefore, be it enacted by the General
Assembly of the State of Indiana, that on
and after the passage of this act it shall be
compulsory for each and every institution
in the state, entrusted with the care of con-
firmed criminals, idiots, rapists, and im-
beciles, to appoint upon its staff, in addition
to the regular institutional physician, two
(2) stdlled surgeons of recognized ability,
whose duty it shall be, in conjunction, with
the chief physician of the institution, to
examine the mental and physical condition
of such inmates as are recommended by the
institutional physician and board of man-
agers. If, in the judgment of this committee
of experts and the board of managers, pro-
creation is inadvisable, and there is no prob-
ability of improvement of the mental and
physical condition of the inmate, it shall be
lawful for the surgeons to perform such
operation for the prevention of procreation
as shall be decided safest and most effective.
But this operation shall not be performed
except in cases that have been pronounced
unimprovable: Provided, That in no case
shall the consultation fee be more than three
dollars to each expert, to ..be paid out of the
funds appropriated for the maintenance of
such institution.
2. WASHINGTON.
(a.) First Law.
Date of Law: June 9, 1909.
The bill was introduced as a part of the
criminal code which was prepared by the
Code Commission.
It passed the Senate March 1, 1909; the
House March 4, 1909 .
It was approved March 22, 1909, by Gov-
ernor M. E. Hay.
It appears on the Washington statutes of
190« as Chapter 249, sec. 35 Criminal Code.
PREVENTION OF PROCREATION:
Whenever any person shall be adjudged
guilty of carnal abuse of a female person
under the age of ten years, or of rape, or
shall be adjudged to be an habitual criminal,
the court may, in addition to such other
punishment or confinement as may be im-
posed, direct an operation to be performed
upon such person for the prevention of pro-
creation.
(b.) Second Law.
Date of Law: June 9, 1921.
The Bill was introduced on February 14,
1921, by the Committee on Medicine, Sur-
gery, Dentistry and Hygiene.
It passed the House February 17, 1921 —
68 ayes, 13 noes, absent or not voting 16.
It passed the Senate March 2, 1921 — 36
ayes, 1 no, absent or not voting 5.
It was approved March 8, 1921, by Gov.
L. F. Hart.
It appears on the Washington statutes as
Chapter 53 of the Session Laws of 1921,
H. B. 190.
PREVENTION OF PROCREATION.
AN ACT to prevent the procreation of
feeble-minded, insane, epileptic, habitual
criminals, moral degenerates and sexual per-
verts, who may be inmates of institutions
maintained by the State, authorizing and
providing for the sterilization of persons with
inferior hereditary potentialities and provid-
ing for appeals to the Superior Courts in
certain cases.
Be it enacted by the Legislature of th«
State of Washington:
SUPERINTENDENTS OF INSTITU-
TIONS TO MAKE REPORTS.
Section 1. It shall be and is hereby de-
clared the duty of the superintendents of all
state institutions having the care of indi-
16
Li!Gisi<ATivi; Rbcords of the Sterii^ization Laws
viduals held in restraint to report quarterly
to the institutional Board of Health, all
feeble-minded, insane, epileptic, habitual
criminals, moral degenerates and ?exual per-
verts, who are persons potential to produc-
ing offspring who, because of inheritance of
inferior or anti-social traits, would probably
become a social menace or wards of the
State.
STERILIZATION AUTHORIZED.
Section a. It shall be the duty of the
Institutional Board of Health to examine
into the innate traits, the mental and physical
conditions, the personal records, and the
family traits and histories of all persons re-
ported so far as the same can be ascertained,
and for this purpose said Board shall have
the power to summon witnesses, and any
member of said Board may administer an
oath to any witness whom it is desired to
examine; and if in the judgment of a ma-
jority of the said Board procreation by any
such person would produce children with an
inherited tendency to feeble-mindedness, in-
sanity, epilepsy, criminality or degeneracy,
and there is no probability that the condi-
tion of such person so examined will improve
to such an extent as to render procreation
by any such person advisable, or if the physi-
cal or mental condition of any such' person
will be substantially improved thereby, then
it shall be the duty of said Board to make
an order directing the superintendent of the
institution in which such inmate is confined
to perform or cause to be performed upon
such inmate such a type of sterilization as
may be deemed best by said Board.
PURPOSE.
Section 3. The purpose of said investiga-
tion, findings and orders of said Board shall
be for the betterment of the physical, riiental,
neural, or psychic condition of the inmate,
or to protect society from the menace of
procreation by said inmate, and not in any
manner as a punitive measure; and no person
shall be emasculated under the authority of
this act except that such operation shall be
found to be necessary to improve the physi-
cal, mental, neural or psychic condition of
the inmate.
NOTICE OR ORDER.
Section 4. After fully inquiring into the
condition of each of such inmates said board
shall make separate written findings for each
of the inmates whose condition has been
examined into, and the same shall be pre-
served in the records of said Board, and a
copy thereof shall be furnished to the super-
intendent of the institution in which the
inmate is confined, and if an operation is
deemed necessary by said Board, then a
copy of the order of said Board shall forth-
with be served on said inmate, or in the
case of an insane person, upon his legal
guardian, and if such insane person have no
legal guardian, then upon his nearest known
kin within the State of Washington, and if
such insane person have no known kin within
the State of Washington, then upon the
custodial guardian of such insane person.
APPEAL.
Section 5. Any such inmate desiring to
appeal from the decision of said Board, or
in the case the person is under guardianship
or disability, then the guardian of said in-
mate may take an appeal into the Superior
Court of the county in which the institution
in which the inmate is confined, is located.
An informal notice of appeal filed with the
secretary of said board, either by the inmate
or someone in his behalf, shall be all that is
necessary to make the appeal: Provided,
said notice shall be filed within fifteen days
of the date when notice of the board's deci-
sion is served on the inmate or his guardian
and said notice of appeal shall stay all pro-
ceedings of said board on said matter until
the same is heard and determined on said
appeal: Provided, further, that no operation
shall be performed upon any inmate until
the time for appeal from the decision of the
board has expired.
PROCEDURE ON APPEAL.
Section 6. Upon an appeal being taken,
the secretary of said board where the notice
of appeal is filed, must within fifteen days
thereafter, or such further time as the court
or the judge thereof may allow, transmit a
certified copy of the notice of appeal and
transcript of the proceedings, findings and
order ot the board, to the clerk of the court
appealed to. The trial shall be a trial de
novo at law as provided by the statutes of
the state, for the trial of actions at law.
Upon such appeal, if the inmate be without
sufficient financial means to employ an attor-
ney, then the court shall appoint an attorney
to represent the said inmate, and such attor-
ney shall be compensated by the state upoiv
order of the court; and it shall be the duty
of the district attorney of the county wherein
such trial is had to represent the said board.
lvEGISI<ATlVE KECORDS Of THE STERILIZATION LaWS
17
ENTRY OF JUDGMENT.
Section 7. If the court or jury shall affirm
the findings of said board, said court shall
enter a judgment, adjudging that the order of
said board shall be carried out as herein
provided; if the court fail to affirm the deci-
sion of said board appealed from, then said
order shall be null and void and of no further
effect.
OPERATIONS.
Section 8. Upon the receipt of the order
from the Institutional Board of Health, the
superintendent of the institution to which it
is directed shall, after the time for appeal has
expired, or in case of an appeal upon the enter-
ing of a judgment affirming the order of the
board, and it is hereby made his lawful duty,
to perform, or cause to (be) performed such
surgical operation as may be specified in the
order of the Institutional Board of Health.
All such operations shall be performed with
a due regard for the physical condition of the
inmate and in a safe and humane manner
SURGEON'S LIABILITY.
Section 9. No surgeon performing the
operation provided for in the preceding sec-
tion under the direction of the superintend-
ent, or other officer in charge of such
institution, shall be held criminally liable
therefor or civilly liable for any loss or
damage on account thereof, except in case
of negligence in the performance of such
operation.
PERSONS AFFECTED.
Section 10. The criminals who shall come
within the operation of this law shall be
those who have been convicted three or more
times of a felony and sentenced to serve in
the penitentiary therefor. Moral degenerates
and sexual perverts are those who are
addicted to the practice of sodomy or the
crime against nature, or to other gross,
bestial and perverted sexual habits and prac-
tices prohibited by statute.
SEX.
Section 11. The provisions of this act
shall apply to both male and female inmates
of any of the institutions designated therein.
EXPENSE.
Section 12. The state shall be liable,
under this act, only for the actual traveling
expenses of the members of the board in-
curred in the performance of their duties, and
the actual and necessary expense incident to
the investigations of said board and an
appeal therefrom, which shall be paid upon
vouchers signed by the person receiving such
compensation and expense from the moneys
appropriated for the maintenance of the
institution where such examination is held.
3. CALIFORNIA.
a. First Law.
Date of Law: June 25, 1909.
The bill was introduced on February 8,
1909, by Senator W. F. Price, of Santa Rosa,
California.
It passed the Senate March 16', 1909—31
ayes, 1 no; the House March 33, 1909—
41 ayes, 0 noes.
It was approved April 26, 1909, by Gov-
ernor James N. Gillett.
It appears on the California statutes of
1909 as Chapter 730 On page 1093.
(It was repealed and substituted for by
Chapter 363, sec. 4, June 13, 1913.)
AN ACT to permit asexualization of in-
mates of the state hospitals and the Califor-
nia Home for the Care and Training of
Feeble-Minded Children and of convfcts in
the state prisons.
The people of the State of California, rep-
resented in Senate and Assembly, do enact
as follows:
Section 1. Whenever in the opinion of
the medical superintendent of any state
hospital, or the superintendent of the Cali-
fornia Home for the Care and Training of
Feeble-Minded Children, or of the resident
physician in any state prison, it would be
beneficial and conducive to the benefit of the
physical, mental, or moral condition of any
inmate of said state hospital, home, or state
prison, to be asexualized, then such super-
intendent or resident physician shall call in
consultation the general superintendent
of the state hospitals, and the secre-
tary of the state board of health, and
they shall jointly examine into all the par-
ticulars of the case with the said super-
intendent or resident physician, and if in their
opinion or in the opinion of any two of
them, asexualization will be beneficial
to such inmate, patient, or convict,
they may perform the same; Provided,
that in the case of an inmate or con-
vict confined in any of the state prisons of
this state, such operation shall not be per-
formed unless the said inmate or convict
has been committed to a state prison in this
or in some other state or country at least
two times for some sexual oflfense, or at
18
Legislative Records of the Sterilization Laws
least three times for any other crime, and
shall have given evidence while an inmate
in a state prison in this state that he is a
moral and sexual pervert; and provided
further, that in the case of convicts sentenced
to state prison for life vi^ho exhibit continued
evidence of moral and sexual depravity, the
right to asexualize them, as provided in this
act, shall apply, whether they have been
inmates of a state prison whether in this or
any other state or country more than one
time.
b. Second Law.
Date of Law: June 13, 1913.
This statute repeals the first sterilization
law, Chapter 720 on page 1093, April 26,
1909.
The bill was introduced on January 38,
1913, by Senator Edwin M. Butler, of Los
Angeles, Cal.
It passed the Senate April 22, 1913 — 21
ayes, 4 noes; the House May 10, 1913—40
ayes, 34 noes.
It was approved June 13, 1913, by Gov-
ernor Hiram W. Johnson.
It appears on the California statutes as
Chapter 363; Senate Bill 881.
AN ACT to provide for the asexualization
of the inmates of state hospitals for the in-
sane, the Sonoma State Home, of convicts
in the state prisons, and of idiots, and re-
pealing an act entitled "An act to permit
asexualization of inmates of the state hospi-
tals and the California Home for the Care
and Training of Feeble-Minded Children and
of convicts in the state prisons", approved,
April 26, 1909.
The people of the State of California do en-
act as follows:
Section 1. Before any person who has been
lawfully committed to any state hospital for
the insane, or who has been an inmate of
the Sonoma State Home, and who is afflicted
with hereditary insanity or incurable chronic
mania or dementia shall be released or dis-
charged therefrom, the state commission in
lunacy may in its discretion, after a careful
investigation of all the circumstances of the
case, cause such a person to be asexualized,
and such asexualization, whether with or
without the consent of the patient, shall be
lawful and shall not render said commission,
its members, or any person participating in
the operation liable either civilly or crimi-
nally.
Section 2. Whenever in the opinion of the
resident physician of any state prison it will
be beneficial and conducive to the benefit
of the physical, mental, or moral condition
of any recidivist lawfully confined in such
state prison to be asexualized, then such
physician shall call in consultation the gen-
eral superintendent of state hospitals and the
secretary of the state board of healtii, and
they shall jointly examine into the particulars
of the case with the said resident physician,
and if in their opinion or the opinion of any
twp of them, asexualization will be beneficial
to such recidivist, they may perform the
same; provided, that such operation shall not
be performed unless the said recidivist has
been committed to a state prison in this or
some other state or country at least two
times for rape, assault with intent to commit
rape, or seduction, or at least three times for
any other crime or crimes, and shall have
given evidence while an inmate of a state
prison in this state that he is a moral or
sexual degenerate or pervert; and provided,
further, that in the case of convicts sentenced -
to state prison for life, who exhibit continued
evidence of moral and sexual depravity, the
right to asexualize them, as provided in this
section, shall apply whether they shall have
been inmates of a state prison in this or any
other country or state more than one time
or not; provided, further, that nothing in
this act' shall apply to or refer to any voliui-
tary patient confined or kept in any state
hospital of this state.
Section 3. Any idiot, if a minor, may be
asexualized by or under the direction of the
medical superintendent of any state hospital,
with the written consent of his or her parent
or guardian, and if an adult, then with the
written consent of his or her lawfully ap-
pointed guardian, and upon the written re-
quest of the parent or gtiardian of any such
idiot or fool, the superintendent of any state
hospital shall perform such operation or
cause the same to be performed without
charge therefor.
Section 4. An act entitled "An act to per-
mit asexualization of inmates of the state hos-
pitals and the California Home for the Care
and Training of Feeble-Minded Children,
and of convicts in the state prisons", ap-
proved April 26, 1909, is hereby repealed.
c. Amendment to the Second Law.
Date of Amendment: July 26, 1917.
The bill was introduced on January 26,
1917, by Senator Edward J. Tyrrell of Oak-
land, California.
It passed the Senate March 9, 1917 — 26
ayes, no noes; the Assembly April 18, 1917
— 43 ayes, 7 noes.
Legisi^ative; Records op the Sterii^izatign Laws
19
It was approved May 17, 1917, by Gov-
ernor Wm. D. Stephens.
It appears on the California statutes as
Chapter 489 of the Laws of 1917.
AN ACT to amend section one of an act
entitled "An act to provide for the asexuali-
zation of inmates of state hospitals for the
insane, the Sonoma State Home, of convicts
in the state prisons, and of idiots, and repeal-
ing an act entitled 'an act to permit asexuali-
zation of inmates of the state hospitals and
the California Home for the Care and Train-
ing of Feeble-Minded Children, and of con-
victs in the state prisons,' approved April 26,
1919," approved June 13, 1913.
(Approved May 17, 1917.)
The People of the State of California do
enact as follows:
Section 1. Section one of the act entitled
"An act to provide for the asexualization of
inmates of state hospitals for the insane, the
Sonoma State Home, of convicts in the state
prisons, and of idiots, and repealing an act
entitled, 'An act to permit asexualization of
inmates of the state hospitals and the Cali-
fornia Home for the Care and Training of
Feeble-minded Children, and of convicts in
the state prisons,' approved April 36, 1909,"
approved June 13, 1913, is hereby amended to
read as follows:
Section 1. Before any person who has
been lawfully committed to any state hospi-
tal for the insane, or who has been an inmate
of the Sonoma State Home, and who is
afflicted with mental disease which may have
been inherited and is likely to be transmitted
to descendants, the various grades of feeble-
mindedness, those suffering from perversion
or marked departures from normal mentality
or from disease of a syphilitic nature, shall
be released or discharged therefrom, the
state commission in lunacy may in its dis-
cretion, after a careful investigation of all
the circumstances of the case, cause such
person to be asexualized, and such asexuali-
zation whether with or without the consent
of the patient shall be lawful and shall not
render the said commission, its members or
any person participating in the operation
liable either civilly or criminally.
Note: The above Section 1, as amended,
differs only from Section 1 of the un-
amended statute in substituting the above
underlined phrases for the following:
"* • • hereditary insantity or incurable
chronic mania or dementia
d. Sterilization Provision of the Law of
California establishing the Pacific Colony
"An institution for the care, confinement,
and instruction of feeble-minded and epilep-
tic persons."
Date of Law: July 31, 1917.
The bill was introduced on January 83,
1917, by Representative Thomas L. Am-
brose of Los Angeles, California.
It passed the Assembly April 14, 1917 —
43 ayes, no noes; the Senate, April 27, 1917,
— 24 ayes, no noes.
It was approved June 1, 1917, by Governor
Wm. D. Stephens.
It appears on the California statutes as
Section 43, Chapter 776 of the Laws of 1917.
Section 42. Before any inmate who has
been committed to the Pacific Colony and
who is feeble-minded, or is afflicted with
incurable chronic mania or dementia, shall
be released or discharged therefrom, the
board of trustees on the recommendation of
the superintendent, approved by a clinical
psychologist holding the degree of Ph. D.
and a physician qualified to serve under Sec-
tion 19 of this Act, after they have made a
careful investigation of all the circumstances
of the case, may cause such person to be
sterilized; and such sterilization, whether
with or without the consent of the inmate,
shall be lawful, and shall not render the said
commission, or its members, or any person
participating in the operation, the said trus-
tees, the said colony, or any of its officers
or employees, liable civilly or criminally.
4. CONNECTICUT.
(a) First Law.
Date of Law: October 1, 1909.
The bill was introduced on February 2,
1909, by Representative Wilbur F. Tomlin-
son, of Danbury, Conn.
It passed the House July 30, 1909 — 130
ayes, 28 noes; the Senate July 28, 1909.
It was approved August 13, 1909, by
Governor F. B. Weeks.
It appears on the Connecticut statutes as
Public Acts 1909, Chapter 209. (Substitute
for House bill No. 123.) Sections 2691-2 of
the General Statutes, Revision of 1918.)
AN ACT concerning operations for the
prevention of procreation.
Be it enacted by the Senate and House of
Representatives in General Assembly con-
vened :
Section 1. The directors of the state
prison and the superintendent of the state
hospitals for the insane at Middletown and
20
IvEGISI<ATlVE RECORDS OP THE STERILIZATION I/AWS
Norwich are hereby authorized and directed
to appoint for each of said institutions, re-
spectively, two skilled surgeons, who, in con-
junction with the physician or surgeon in
charge at each of said institutions shall con-
stitute a board, the duty of which shall be
to examine such inmates of said institutions
as are reported to them by the warden, sup-
erintendent, or the physician or surgeon in
charge, to be persons by whom procreation
would be inadvisable. Such board shall
examine the physical and mental condition
of such persons and their record and family
history, so far as the same can be ascer-
tained, and if, in the judgment of a majority
of said board, procreation by any such per-
son would produce children with an inherited
tendency to crime, insanity, feeble-minded-
ness, idiocy, or imbecility, and there is no
probability that the condition of any such
person so examined will improve to such
an extent as to render procreation by any
such person advisable, or if the physical or
mental condition of any such person will be
substantially improved thereby, then said
board shall appoint one of its members to
perform the operation of vasectomy or
oophorectomy, as the case may be, upon
such person. Such operation shall be per-
formed in a safe and humane manner, and
the board making such examination and the
surgeon performing such operation shall re-
ceive from the state such compensation for
services rendered as the warden of the state
prison or the superintendent of either of
such hospitals shall deem reasonable.
Section 2. Except as authorized by this
act, every person who shall perform, encour-
age, assist in, or otherwise promote the per-
formance of either of the operations
described in section one of this act, for the
purpose of destroying the power to pro-
create the human species, or any person who
shall knowingly permit either of such oper-
ations to be performed upon such person,
unless the same shall be a medical necessity,
shall be fined not more than one thousand
dollars, or imprisoned in the state prison not
more than five years, or both.
(b) Sterilization Provisions of Statute
Extended to Mansfield State Training School
and Hospital.
Chapter 69, Public Acts, 1919.
This amendment was introduced by Rep-
resentative Higgins of Coventry.
It passed the House March 5, 1919; the
Senate March 12, 1919; no record vote.
Approved by the Governor April 3, 1919.
AN ACT amending an Act concerning
Operations to Prevent Procreation.
Be it enacted by the Senate and House of
Representatives in General Assembly con-
vened :
Section 3691 of the general statutes is
amended to read as follows: The directors
of the state prison and the superintendents
of the state hospitals for the insane at Mid-
dletown and Norwich and the superintend-
ent of the Mansfield State Training School
and Hospital at Mansfield Depot are author-
ized and directed to appoint for each of said
institutions two skilled surgeons, who, in
conjunction with the physician or surgeon
in charge at each of said institutions, shall
constitute a board the duty of which shall
be to examine such inmates of said institu-
tions as are reported to them by the warden
or superintendent or the physician or sur-
geon in charge, to be persons by whom
procreation would be inadvisable. Such
•board shall examine the physical and mental
condition of such persons and their record
and family history so far as the same can
be ascertained, and if, in the judgment of a
majority of said board, procreation by any
such person would produce children with an
inherited tendency to crime, insanity, feeble-
mindedness, idiocy or imbecility and there is
no probability that the condition of any
such person so examined will improve to
such an extent as to render procreation by
any such person advisable, or if the physical
or mental condition of any such person will
be substantially improved thereby, then said
board shall appoint one of its members to
perform the operation of vasectomy or
oophorectomy, as the case may be, upon
such person. Such operation shall be per-
formed in a safe and humane manner, and
the board making such examination and the
surgeon performing such operation shall re-
ceive from the state such compensation for
services rendered as the warden of the state
prison or the superintendent of either of
such hospitals shall deem reasonable.
Note: This law differs from its prede-
cessor only in extending its provisions to
the newly created Mansfield State Training
School and Hospital.
6. NEVADA.
Date of Law: January 1, 1918.
The bill was introduced March 3, 1911, by
the Code Commission, not as a separate bill,
but as part of the Crimes and Punishments
Bill.
LegisIvATivh; Records of thu Sterilization Laws
21
It passed the Senate March 10, 1911 — 17
ayes, 1 no, 1 absent; the House March 14,
1911 — 34 ayes, 7 noes, 4 absent, 4 not voting.
It was approved March 17, 1911, by
Governor Tasker L. Oddie.
It appears on the Nevada statutes as Sec-
tion 28 of the Crimes and Punishments Act.
PREVENTION OF PROCREATION:
Whenever any person shall be adjudged
guilty of carnal abuse of a female person
under the age of ten years, or of rape, or
shall be adjudged to be an habitual criminal,
the court may, in addition to such other
punishment or confinement as may be im-
posed, direct an operation to be performed
upon such person for the prevention of pro-
creation; provided, the operation so per-
formed shall not consist of castration.
6. IOWA.
(a) First Law.
Date of Law: July 4, 1911.
The bill was introduced on February 17,
1911, by Representative Eli C. Perkins, of
Delhi, Iowa.
It passed the House March 38, 1911—64
ayes, 13 noes; the Senate April 6, 1911 — 33
ayes, noes 0.
It was approved April 10, 1911, by Gover-
nor B. F. Carroll.
It appears on the Acts of the Thirty-
fourth General Assembly of Iowa (1911) as
Chapter 129.
(It was repealed and substituted for by
Chapter 187, Acts of the Thirty-fifth Gen-
eral Assembly, April 19, 1913.)
AN ACT to prevent the procreation of
habitual criminals, idiots, feeble-minded, and
imbeciles. [Additional to title twelve (XII)
of the code, relating to the police of the
state.]
Be it enacted by the General Assembly ot
the State of Iowa:
Section 1. Unsexing of Criminals, Idiots,
etc. That it shall be the duty of the man-
aging officer of each public institution in
the state, entrusted with the custody or care
of criminals, idiots, feeble-minded, imbeciles,
drunkards, drug fiends, epileptics, and syphil-
itics, and they are hereby authorized and
directed to annually, or oftener, examine
into. the mental or physical condition of the
inmates of such institutions, with a view to
determining whether it is improper to allow
any of such inmates to procreate; and to
annually, or oftener, call into consultation
the members of the state board of parole.
The members of such board and the man-
aging officer and the surgical superintendent
of such institution shall judge of such
matters. If a majority of them decide that
procreation by any such inmate would pro-
duce children with a tendency to disease,
crime, insanity, feeble-mindedness, idiocy, or
imbecility, and there is no probability that
the condition of any such inmate so examined
will improve to such an extent as to render
procreation by any such inmate advisable,
or if the physical or mental condition of any
such inmate will be materially improved
thereby, or if such inmate is an epileptic or
syphilitic, or gives continued evidence while
an inmate of such institution that he or she
is a moral or sexual pervert, then the sur-
geon of the institution shall perform the
operation of vasectomy or ligation of the
Fallopian tubes, as the case may be, upon
such person. Provided that such operation
shall be performed upon any convict or
inmate of such institution who has been con-
victed of prostitution or violation of the law,
as laid down in chapter two hundred and
sixteen (316)*, acts of the Thirty-third Gen-
• The full text of Chapter 216 is as follows:
CK&FTEB 216 — THE I^AWS OF THE TBIB-
TT-THIBD IOWA QEITEBAi; ASSEMBI^T.
Detention or Conflnlnsr of IFemales 1)7 Force or
Intimidation for Purposes of Prostitution.
S. P. 216.
AN ACT prohibiting the detention or con-
flnement of any female in any house, room,
building, or premises by force, false pretence,
or intimidation, for purposes of prostitution
or with intent to cause such female to be-
come a prostitute, and providing a punishment
for the violation^ thereof. [Additional to
Chapter nine (9) of title twenty-four (XXIV)
of the code relating to offenses against chas-
tity, morality and decency.]
Be it enacted 1>y the General A8sem.l)ly of
the State of Iowa:
Section 1. Detention or Confinement of Fe-
males for Prostitution Purposes. Whoever
shall unlawfully detain or confine any female
by force, false pretence, or intimidation In
any room, house, building or premises in this
state, against the will of such female, for pur-
poses of prostitution or with intent to cause
such female to become a. prostitute, and be
guilty of fornication or concubinage therein,
or shall by force, false pretence, confinement,
or intimidation, attempt to prevent any feriiale
so as aforesaid detained, from leaving such
room, house, building, or premises, and who-
ever aids, assists, or abets by force, false
pretence, confinement, or intimidation, in
keeping, conflning, or unlawfully detaining any
female in any room, house, building or prem-
ises in this state, against the will of such
female, for the purpose of prostitution, forni-
cation, or concubinage, shall on conviction, be
imprisoned in the penitentiary not less than
one nor more than ten years.
Approved March 25, A. D. 1909.
22
Legis^ativh; Records op the Sterilization Laws
eral Assembly, or who has been twice con-
victed of some other sexual offense, or has
been three times convicted of felony, and
each such convict or inmate shall be sub-
jected to this same operation of vasectomy
or ligation of the Fallopian tubes, as the
case may be, by the surgeon of the institu-
tion.
Section 2. Penalty. Except as authorized
in this act, every person who shall perform,
encourage, assist in or otherwise promote
the performance of either of the operations
described in Section 1 of this act, for the
purpose of destroying the power to procreate
the human species, or any person who shall
knowingly permit either of such operations
to be performed upon such persons, unless
the same shall be a medical necessity, shall
be fined not more than one thousand ($1,000)
dollars, or imprisoned in the county jail not
to exceed one year, or both.
(b) Second Law.
Date of Law: July 4, 1913.
This statute repeals the first sterilization
law, Chapter 129, Acts of the Thirty-fourth
General Assembly, April 10, 1911.
The bill was introduced March 10, 1913,
by Representative Col. Halgrims, of Hum-
boldt, Iowa.
It passed the House April 17, 1«13— 61
ayes, 7 noes; the Senate April 18, 1913 — 27
ayes, 11 noes.
It was approved April 19, 1913, by Gov-
ernor George W. Clarke.
It appears on the Iowa laws of 1913,
Chapter 187, Acts of the Thirty-fifth Gen-
eral Assembly.
AN ACT to repeal the law as it appears in
chapter one hundred twenty-nine (129) of
the acts of the Thirty-fourth General As-
sembly, and to enact a substitute therefor
relating to the prevention of the procreation
of criminals, rapists, idiots, feeble-minded,
imbeciles, lunatics, drunkards, drug fiends,
epileptics, syphilitics, moral and sexual per-
verts, and diseased and degenerate persons.
Be it enacted by the General Assembly of
the State of Iowa:
Section 1. Unsexing of criminals, idiots,
etc. Board of Parole; Duties. That it shall
be the duty of the state board of parole,
with the managing officer and the physician
of each public institution in the state,
entrusted with the care and custody of crim-
inals, rapists, idiots, feeble-minded, imbeciles,
lunatics, drunkards, drug fiends, epileptics,
syphilitics moral and sexual perverts, and
diseased and degenerate persons, and they
are hereby authorized and directed to, an-
nually or oftener, examine into the mental
and physical condition, the records and
family history of the inmates of such institu-
tions, with a view of determining whether it
is improper or inadvisable to allow any of
such inmates to procreate and to judge of
such matters; If a majority of them decide
that procreation by any such inmates would
produce children with a tendency to disease,
deformity, crime, insanity, feeble-minded-
ness, idiocy, imbecility, epilepsy, or alcohol-
ism, or if the physical or mental condition
of any such inmate will probably be mate-
rially improved thereby, or if such inmate
is an epileptic or syphilitic, or gives evidence,
while he is an inmate of such institution,
that he or she is a moral or sexual pervert,
then the physician of the institution, or one
selected by him, shall perform the operation
of vasectomy or ligation of the Fallopian
tubes, as the case may be, upon such person.
Provided that such operation shall be per-
formed upon every convict or inmate of
such institution who has been convicted of
prostitution or violation of the law as laid
down in chapter two hundred sixteen (216)*
of the acts of the Thirty-third General
Assembly, or who has been twice convicted
of other sexual offenses, including soliciting,
as defined in section four thousand nine hun-
dred seventy-five-c (4975-c)** of the supple-
ment to the code, 1907, or who has been
twice convicted of a felony, and each such
convict or inmate shall be subject to this
same operation of vasectomy or ligation of
the Fallopian tubes, as the case may be, by
the physician of the institution, or one se-
Lcted by him.
Section 2. Certain persons, operations
upon application. Those afflicted with
syphilis or epilepsy may apply to the board
of parole, or any judge of the district court,
and upon order of such board or judge, the
operation of vasectomy or ligation of the
Fallopian tubes may be performed upon
such person, and any law restricting mar-
• See footnote, page 21.
••Sec. 4975-0. SoUoltiag' for tha Pnrpoi* of
ProBtltnUon— Fanalt7. That any person who
shall ask, request, or soUcJt another to have
carnal knowledge with any female for a con-
sideration or otherwise, shall be punished by
imprisonment in the penitentiary not exceed-
ing five years or imprisonment In the county
jail not exceeding one year, or by a fine not
exceeding one thousand dollars, or both such
fine and Jail imprisonment. (31 Q. A., eh. 16B.)
Legislative Records of the Sterilization Laws
23
riage of such persons shall be void and of
none effect, in case one of the contracting
parties has submitted to such operation and
the same was known to both parties before
their marriage.
Section 3. Annual report. The board of
parole shall make an annual report to the
governor of the state, fully covering their
proceedings under the authority of this act,
and also observations and statistics regard-
ing its benefits.
Section 4. Unsexing prohibited except as
authorized — penalty. Except as authorized
in this act, every person who shall perform,
encourage, assist in or otherwise promote
the performance of either of the operations
described in section one (1) of this act, for
the purpose of destroying the power to pro-
create the human species, or any person
who shall knowingly permit either of such
operations to be performed upon such per-
sons, unless the same shall be a medical
necessity, shall be fined not more than one
thousand dollars ($1,000.00), or imprisoned
in the penitentiary not to exceed one year,
or both.
(c) Third Law.
Date of Law: July 4, 1915.
The bill was introduced on February 18,
1915, by the Committee on Public Health
(Dr. A. W. Slaught, of Ottumwa, Chairman),
as a Committee Bill.
It passed the House, March 6, 1915 — 76
ayes, 13 noes; the Senate, April 12, 1915 — 31
ayes, 6 noes.
It was approved April 16, 1915, by Gov-
ernor George W. Clarke.
It appears on the Iowa statutes as Chapter
203 of the Laws of the Thirty-sixth General
Assembly (1915).
AN ACT to repeal the law as it appears
in chapter nineteen-B (19-B) supplement to
the code, 1913, and to enact a substitute
therefor to prevent the procreation of the
insane, idiots, imbeciles and feeble-minded.
Be it enacted by the General Assembly of
the State of Iowa:
That the law as it appears in Chapter
nineteen-B (19-B) of title twelve (1?) sup-
plement to the code, 1913, be and the same
is hereby repealed and the following enacted
in lieu thereof:
Section 1. Sterilization Authorized. That
whenever the superintendent of any hospital
for the insane and a majority of his medical
staflf shall after investigation and examina-
tion, agree that it is for the best interests
of the patient and society, they are hereby
authorized to perform, or cause to be per-
formed by some capable physician or sur-
geon, the operation of sterilization on any
such . patient confined in said institution
afflicted with insanity, idiocy, imbecility,
feeble-mindedness or syphilis; provided that
said operation is approved by the board of
control or a majority thereof; and provided
further, that the superintendent of the hos-
pital shall have secured the written consent
of the husband or wife, if the patient is a
married person, and if an unmarried person,
the written consent of the parent, guardian
or next of kin, if any there be within this
state, that said operation shall be performed.
Section 2. Operation Defined. The oper-
ation to be performed upon a male person
shall be what is known as vasectomy, and
upon a female person what is known as a
section of the Fallopian tubes with implanta-
tion of the uterine muscles.
Section 3. Annual Report. The board of
control shall make an annual report to the
governor of the state fully covering their
proceedings under the authority of this act,
and also their observations and statistics re-
garding its benefits.
Section 4. Unauthorized Operations —
Penalty. Except as authorized in this act
every person who shall perform, encourage,
assist in, or otherwise promote the perform-
ance of either of the operations described
in section two (2) of this act for the purpose
of destroying the power to procreate the
human species, or any person who shall
knowingly permit either of such operations
to be performed upon such person unless
the same shall be a medical necessity, shall
be fined not more than one thousand dollars
($1,000), or imprisoned in the penitentiary
not to exceed one year, or both.
7. NEW JERSEY.
Date of Law: April 31, 1911.
The bill was introduced on February 27,
1911, by Representative B. H. White, of
Mount Holly, New Jersey.
It passed the House March 28, 1911^;— 33
ayes, 6 noes; the Senate April 18, 1911 — 12
ayes, noes 0.
It was approved April 31, 1911, by Gov-
ernor Woodrow Wilson.
It appears on the New Jersey statutes of
1911 as Chapter 190.
AN ACT to authorize and provide for the
sterilization of feeble-minded (including
24
L,e;gisi,ative Records of the Sterilization Laws
idiots, imbeciles and morons), epileptics,
rapists, certain criminals and other defectives.
WHEREAS, heredity plays a most im-
portant part in the transmission of feeble-
mindedness, epilepsy, criminal, tendencies,
and other defects:
Be it enacted by the Senate and General
Assembly of the State of New Jersey:
1. . Immediately after the passage of this
act, the Governor shall appoint by and with,
the advice of the Senate, a surgeon and
neurologist, each of recognized ability, one
for a term of three (3) years and one for a
term of (5) years; their successors each to
be appointed for the full term of five years,
who in conjunction with the Commissioner
of Charities and Corrections shall be known
as and is hereby created the "Board of
Examiners of Feeble-minded (including
idiots, imbeciles and morons). Epileptics and
other Defectives," whose duty it shall be to
examine into the mental and physical condi-
tion of the feeble-minded, epileptic, certain
criminal and other defective inmates con-
fined in the several reformatories, charitable,
and penal institutions in the counties and
state. Any vacancy occurring in said Board
of Examiners shall be filled by appointment
of the Governor for the unexpired term.
2. The criminals who shall come within
the operation of this law shall be those who
have been convicted of the crime of rape, or
of such succession of offenses against the
criminal law as in the opinion of this board
of examiners shall be deemed to be sufficient
evidence of confirmed criminal tendencies.
3. Upon application of the superintendent
or other administrative officer of any institu-
tion in which such inmates are or may be
confined or upon its own motion, the said
board of examiners may call a meeting to
take evidence and examine into the mental
and physical condition of such inmates con-
fined as aforesaid, and if said board of
examiners, in conjunction with the chief phy-
sician of the institution, unanirnously find
that procreation is inadvisable and that there
is no probability that the condition of such
inmate so examined will improve to such an
extent as to render procreation by such
inmate advisable, it shall be lawful to per-
form such operation for the prevention of
procreation as shall be decided by said board
of examiners to be most effective, and there-
upon it shall and may be lawful for any
surgeon qualified under the laws of this
state, under the direction of the chief physi-
cian of said institution, to perform such oper-
ation ; previous to said hearing the said board
shall apply to any judge of the Court of
Common Pleas, of the county in which said
person is confined, for the assignment of
counsel to represent the person to be ex-
amined, said counsel to act at said hearing
and in any subsequent proceedings, and no
order made by said board of examiners shall
become effective until five days after it shall
have been filed with the clerk of the Court
of Common Pleas of the county in which
said examination is held, and a copy shall
have been served upon the counsel appointed
to represent the person examined, proof of
service of the said copy of the order to be
filed with the clerk of the Court of Common
Pleas. All orders made under the provision
of this act shall be subject to review by the
Supreme Court or any justice thereof, and
said court may upon appeal from any order
grant a stay which shall be effective until
such appeal shall have been decided. The
judge of the Court of Common Pleas
appointing any counsel under this act may
fix the compensation to be paid him, and it
shall be paid as other court expenses are
now paid.
No surgeon performing an operation under
the provisions of this law shall be held to
account therefor, but the order of the board
of examiners shall be a full warrant and
authority therefor.
4. The record taken upon the examination
of every such inmate, signed by the said
board of examiners, shall be preserved in
the institution where such inmate is con-
fined, and a copy thereof filed with the Com-
missioner of Charities and Corrections, and
ohe year after the performing of the oper-
ation the superintendent or other adminis-
trative officer of the institution wherein such
inmate is confined shall report to the board
of examiners the condition of the inmate and
the effect of such operation upon such
inmate. A copy of the report shall be filed
with the record of the examination.
5. There shall be paid, out of the funds
appropriated for maintenance of such insti-
tutions, to each physician of said board of
examiners, a compensation of not more than
ten ($10) dollars per diem for each day
actually given to such work or examination,
and his actual and necessary expenses in
going to, holding and returning from such
examination.
When in the judgment of the board of
examiners it is necessary to secure the assist-
ance of a surgeon outside the medical staff
Legislative Records op the Sterilization Laws
25
of the institution to perform or assist in said
operation, the necessary expenses of such
surgeon shall be paid from the maintenance
account of such institution.
6. If any provisions of this act shall be
questioned in any court, and the provisions
of this act with reference to any class of
persons enumerated therein shall be held to
be unconstitutional and void, such determina-
tion shall not be deemed to invalidate the
entire act, but only such provisions thereof
with reference to the class in question as are
specifically under review and particularly
passed upon by the decision of the court.
7. This act shall take effect immediately.
8. NEW YORK.
(a) Text of Law.
Date of Law: April 16, 1913.
The bill was introduced on March 5, 1912,
by Assemblyman Robert P. Bush, of Horse-
heads, N, Y.
It passed the House March 25, 1912 — 78
ayes, 9 noes; the Senate March 29, 1912 — 48
ayes, noes 0.
It was approved April 16, 1912, by Gov-
ernor John A. Dix.
It appears on the New York statutes as
Public Health Law (L. 1909, Chapter 49),
Art. 19 (Section 350-353), as amended by L.
1912, Chapter 445.
AN ACT to amend the public health law,
in relation to operations for the prevention
of procreation.
The people of the State of New York,
represented in Senate and Assembly, do enact
as follows:
Section 1. Article eighteen of chapter
forty-nine of the laws of nineteen hundred
and nine, entitled, "An act in relation to
public health constituting chapter forty-five
of the consolidated 'laws,'' as renumbered
article nineteen by section five of chapter
one hundred and twenty-eight of the laws of
nineteen hundred and eleven, is hereby made
article twenty thereof, and sections three
hundred and fifty and three hundred and
fifty-one of such chapter are hereby renum-
bered sections three hundred and sixty and
three hundred and sixty-one, respectively.
Section 2. Such chapter is hereby
amended by inserting therein a new article,
to be article nineteen thereof, to read as
follows:
ARTICLE 19.
Operations for the Prevention of
Procreation.
Section 350. Board of Examiners; com-
pensation and expenses.
Section 361. General powers and duties
of the board, persons to be operated upon.
Section 352. Appointment of counsel to
persons to be operated upon.
Section 353. Unauthorized and illegal
operations.
Section 350. Board of Examiners; com-
pensation and expenses. Immediately after
the passage of this act the Governor shall
appoint one surgeon, one neurologist and
one practitioner of medicine, each with at
least ten years' experience in the actual prac-
tice of his profession, for a term of five
years, to be known as the board of exami-
ners of feeble-minded, criminals and other
defectives, which board is hereby created.
The compensation of the members of such
board shall be ten dollars per diem for each
day actually engaged in the performance of
the duties of the board, and their actual and
necessary traveling expenses. Any vacan-
cies occurring in said board shall be filled by
appointment of the Governor for the unex-
pired term.
Section 351. General powers and duties of
the board; persons to be operated upon. It
shall be the duty of the said board to ex-
amine into the mental and physical condition
and the record and family history of the
feeble-minded, epileptic, criminal and other
defective inmates confined in the several state
hospitals for the insane, state prisons, re-
formatories, and charitable and penal insti-
tutions in the state, and if in the judgment
of the majority of said board procreation by
any such person would produce children with
an inherited tendency to crime, insanity,
feeble-mindedness, idiocy, or imbecility, and
there is no probability that the condition of
any such person so examined will improve
to such an extent as to render procreation
by any such person advisable, or if the
physical or mental condition of any such
person will be substantially improved
thereby, then said board shall appoint one
of its members to perform such operation
for the prevention of procreation as shall be
decided by said board to be most effective.
The criminals who shall come within the
operation of this law shall be those who
have been convicted of the crime of rape or
of such succession of offenses against the
criminal law as in the opinion of the board
shall be deemed to be sufficient evidence of
confirmed criminal tendencies.
Section 352. Appointment of counsel to
person to be operated upon. The board of
26
Legislative Records op the Steriwzation Laws
examiners shall apply to any judge of the_
Supreme Court or county judge of the
county in which said person is confined for
the appointment of counsel to represent the
person to be examined. Said counsel to act
a* a hearing before the judge and in any
subsequent proceedings, and no order made
by said board shall become effective until
five days after it shall have been filed with
the clerk of the court and a copy shall have
been served upon the counsel appointed to
represent the person examined and proof of
service of said copy of the order to be filed
with the clerk of the court. All orders made
under provisions of this act shall be subject
to review by the Supreme Court or any jus-
tice thereof, and said court may upon
appeal from any order grant a stay, which
shall be effective until such appeal shall have
been decided. The judge of the court
appointing any counsel under this act may
fix the compensation to be paid him. No
surgeon performing an operation under the
provisions of this act shall be held to account
therefor. The record taken upon the exami-
nation of every such inmate, signed by the
said board of examiners, shall be preserved
by the institution where said inmate is con-
fined, and one year after the performance of
the operation the superintendent or other
administrative officer of the institution
wherein such inmate is confined shall report
to the board of examiners the condition of
the inmate and the effect of such operation
upon such inmate, and a copy of the report
shall be filed with the record of the examina-
tion.
Section 353. Unauthorized and illegal
operations. Except as authorized by this
act, every person who shall perform, encour-
age, assist in, or otherwise permit the per-
formance of the operation for the purpose of
destroying the power to procreate the human
species, or any person who shall knowingly
permit such operation to be performed upon
such person, unless the same shall be a medi-
cal necessity, shall be guilty of a misde-
meanor.
Section 3. This act shall take effect imme-
diately.
(b) The Repeal of the New York Sterili-
zation Statute.
The New York sterilization law of 1912
was repealed May 10, 1920. The repealing
bill was introduced by Senator Henry M.
Sage of New York April 8th. It passed the
Senate April 14th, 49 yeas, 0 nays. It passed
the Assembly April 21st, 142 yeas, 0 nays.
and was signed by Governor Alfred E.
Smith May 10th. The repealing act appears
in the statutes of New York as "L. 1920,
Chap. 619." The full text of the act is as
follows:
AN ACT
To repeal article nineteen of the public
health law, relating to operations for the
prevention of procreation.
The People of the State of New York,
represented in Senate and Assembly, do
enact as follows:
Section 1. Article nineteen of chapter
forty-nine of the laws of nineteen hundred
and nine, entitled "An act in relation to
public health, constituting chapter forty-five
of the consolidated laws," as such article was
added by chapter four hundred and forty-
five of the laws of nineteen hundred and
twelve, is hereby repealed.
Section 2. This act shall take effect
immediately.
9. NORTH DAKOTA.
Date of Law: March 13, 1913.
The bill was introduced on February 8,
1913, by Representative W. H. Northrup,
Luverne, North Dakota.
It passed the House February 17, 1913 —
73 ayes, 20 noes; the Senate March 6, 1913 —
34 ayes, 4 noes.
It was approved March 13, 1913, by Gov-
ernor L. B. Hanna.
It appears on the North Dakota statutes
as Chapter 56 of the laws of 1913. (Chapter
24, Sections 11429-11438, Compiled Laws of
North Dakota, 1913.)
AN ACT to prevent procreation of con-
firmed criminals, insane, idiots, defectives,
and rapists; providing for a board of medi-
cal examiners and making a provision for
carrying out of same.
Be it enacted by the Legislative Assembly
of the State of North Dakota:
Section 1. Whenever the warden, super-
intendent, or head of any state prison, re-
form school, state school for feeble-minded,
or of any state hospital or state asylum for
insane shall certify in writing that he be-
lieves that the mental or physical condition
of any inmate would be improved thereby, or
that procreation by such inmate would be
likely to result in defective or feeble-minded
children with criminal tendencies, and that
the condition of such inmate is not likely
to improve, so as to make procreation by
such person desirable or beneficial to the
community, it shall be lawful to perform a
Legislative Records of the Sterilization Laws
27
surgical operation for the sterilization of
such inmate as hereafter provided.
Section 2. For the purpose of carrying
into effect the provisions of this act the chief
medical officer of any such institution, the
secretary of the state board of health and
one other competent physician and surgeon,
whose appointment is hereinafter provided
for, shall constitute the board of examiners
for such institution. The third member of
such board shall be a competent physician
and surgeon of good standing and of at least
ten years' practice of his profession in North
Dakota, who shall forthwith be appointed
by the State board of control and who shall
serve during the pleasure of said board of
control. One such appointment may be
made in each county in which any of such
institutions is located, or one may be
appointed to act for any two or more of
such institutions to be named in the letter
of appointment. The per diem compensa-
tion of such member so appointed shall be
fixed by the state board of control in the
letter of appointment and shall not be in
excess of $10.00 per day, a duplicate of this
letter shall be filed with the state auditor,
and the ^er diem and actual necessary ex-
penses of such member shall be allowed and
paid in the same manner as is provided for
by law for the payment of the salaries and
expenses of the members, agents, and em-
ployees of the state board of control.
Section 3. When the superintendent oi
any such institution shall deem it advisable
that such operation be performed on any
one or more of the inmates thereof he shall
make such recommendation in writing signed
by him, and file one copy thereof with the
board of control and one with the chief
medical officer of such institution, where-
upon the chief medical officer of such institu-
tion shall forthwith call a meeting of such
board of examiners, to be held at such insti-
tution at a date not less than fifteen days
after the issuance of such call, and such call
shall be in writing, signed by such chief
medical officer, and shall clearly set forth
the date and object of such meeting and
shall contain the names of all inmates whose
cases are to be considered at such meeting.
Section 4. At such meeting such board
of examiners shall diligently inquire into the
mental and physical conditipn of each inmate
so considered, and as far as practicable into
his family history, and for that purpose any
member of said board may administer an
oath to any witness whom it is desired to
examine, and such hearing may be adjourned
from day to day, and, if necessary, sessions
may he held elsewhere than at such institu-
tion.
Section 5. After fully inquiring into the
condition of each such person such board of
examiners shall make separate written find-
ings for each of the persons whose condition
has been inquired into, and such findings
shall either order that such inmate be steril-
ized by such operation as may be deemed
best, or shall find that sterilization is not
necessary or desirable, or shall continue the
case to a time and place therein named or
upon future call for further observation and
inquiry, and such hearings shall be conducted
according to the provisions of section 4 of
this act. If such board in its findings order
such operation upon such inmate, it shall, in
such findings, designate what operation is to
be performed and its purpose, and shall
designate some skilled surgeon, who may
not be one of their own number, who shall
perform it.
Section G. Such institutions shall keep all
files in any proceedings under this act and
full minutes of such meetings, and for that
purpose the chief medical officer of such
institution shall be the secretary of such
board of examiners and custodian of its
records.
Section 7. When in the opinion of the
chief medical officer of any such institution
such operation would be necessary or de-
sirable upon any inmate thereof, for any of
the purposes herein set forth, and such
inmate requests in writing that such oper-
ation be performed, or consents thereto in
writing, he may perform or procure the
performance of such operation without
bringing the matter to the attention of such
board of examiners. When any such oper-
ation is performed under the provisions of
this section it shall be the duty of the chief
medical officer who performs or procures the
performance of such operation to immedi-
ately report to the state board of control
the details of such operation upon such
blanks as the board of control may prescribe.
Section 8. Whenever the state's attorney
of any county shall have reason to believe
that any person who shall be convicted of
felony has been twice or more previously
convicted of felonies in North Dakota and
elsewhere, it shall be the duty of such state's
attorney to investigate and to secure at the
expense of the county, transcripts of records
of conviction from other counties and states
28
Legislative Records of the Sterilization Laws
and also such evidence of identification as
may be obtained. Such proof when obtained
shall be forwarded to the state board of con-
trol, who shall thereupon notify the chief
medical officers of the institution to which
such person is committed and the secretary
of the state board of health, and such case
shall be dealt with in accordance with the
procedure stated in section 1 of this act.
Section 9. No surgeon who shall skillfully
perform any operation as authorized by this
act shall be held accountable therefor, but
the findings and order of this said board of
examiners or the court, or the consent of
such inmate and parents or guardian shall
be his full warrant and authority therefor.
Section 10. It shall be the duty of the
chief medical officer of any such institution
in which any sterilized inmates are confined
to make careful observation of each of such
inmates, particularly with the view to ascer-
taining the effect of such operation upon the
moral, mental and physical condition of such
sterilized persons, and once a year, and
oftener if called for by the Governor, to
make report on each of such persons in writ-
ing, keeping a copy of such report on file in
such institution and furnishing copies to the
Governor, the state board of control and the
secretary of the state board of health.
Section 11. (Emergency.) WHEREAS,
heredity plays a most important part in the
transmission of crime, insanity, idiocy, and
imbecility, and our institutions for degener-
ates are overcrowded on account of the lack
of adequate means of checking the ever-
increasing numbers of this class; and
whereas, there is now no provision in law
authorizing an operation for the sterilization
of defective persons, this act shall take effect
and be in force from and after its passage
and approval.
10. MICHIGAN.
Date of Law: August 1, 1913.
The bill was introduced on January 13,
1913, by Representative Arthur Odell, of
Allegan, Michigan.
It passed the House February 18, 1918 —
72 ayes, 16 noes; the Senate March 19, 1913
— 21 ayes, 9 noes.
It was approved April 1, 1913, by Gov-
ernor Woodbridge N. Ferris.
It appears on the Michigan statutes of
1913 as Act No. 34, Public Acts 1913, page 52.
AN ACT to authorize the sterilization of
mentally defective persons maintained wholly
or in part by public expense in public institu-
tions in this state, and to provide a penalty
for the unauthorized use of the operations
provided for.
The people of the State of Michigan enact:
Section 1. Authority is given to the
management of any institution maintained
wholly or in part by public expense, in whose
custody may be held individuals who have
been by a court of competent jurisdiction
adjudged to be and who are mentally de-
fective or insane, to render incapable of pro-
creation, by vasectomy or salpingectomy or
by the improvement of said surgical oper-
ation which is least dangerous to life and
will best accomplish the purpose, any person
who is mentally defective or insane.
Section 2. The boards of the aforesaid
institutions and the physicians or surgeons
in charge of each of said institutions shall
for each of their respective institutions con-
stitute a board, the duty of which shall be to
examine such inmates of said institutions as
are reported to them by the warden or medi-
■ cal superintendent to be persons by whom
procreation would , be inadvisable. Such
board shall receive the report of insanity
experts hereinafter mentioned, examine the
physical and mental condition of such per-
sons, and their record and family history so
far as the same can be ascertained, and if
in the judgment of a majority of said board
procreation by any such person would pro-
duce children with an inherited tendency to
insanity, feeble-mindedness, idiocy, or imbe-
cility, and there is no probability that the
condition of any such person so examined
will improve to such an extent as to render
proci^eation by any such person advisable, or
if the physical or mental condition of any
such person so examined will be substan-
tially improved thereby, then said board
shall direct a competent physician or sur-
geon, with such other assistants as may be
necessary, to perform the operation of vasec-
tomy or salpingectomy, or any other oper-
ation or improvement on vasectomy or sal-
pingectomy recognized by the medical pro-
fession, as the case may be, upon such
person. Such operation shall be performed
in a safe and humane manner, and the board
making such examination, and the institution
physician or surgeon, shall receive no extra
compensation therefor; provided, that at
least thirty days' notice shall be given to
the parents or guardian of such person
before the performing of such operation;
said notice to specify the purpose, time and
place of such examination; provided further.
Lbgisi<ativi; Records of the Steriwzation Laws
29
that when said parents or guardian object
to the performance of such operation, then
the question of the sanity of such person
shall be referred to the probate court of the
county in which the institution is located,
where the question of the sanity and the
necessity for this operation shall be deter-
mined as in other insane cases before such
courts.
Section 3. In case an institution has no
physician at its head, authority is given to
the board of managers to cause such oper-
ation to be performed, to hire expert physi-
cians to examine and report on the condition
of the subject, and to perform the operation
with such other assistants as may be neces-
sary: Provided, before said operation is
ordered there shall first be secured from two
physicians having qualifications prescribed
by law for examiners in insanity a written
statement or report that such operation is
desirable in the interests of the patient or
the good of the community: And, provided
further, that these physicians shall be
allowed for their services the compensation
fixed by statutes for the examination and
certification of an insane person. The
several sums necessary to carry out the pro-
visions of this act shall be certified to be
correct by the respective boards and shall
be paid out of the general fund of the state
upon the warrant of the auditor-general.
Section 4. In relation to each individual
person sterilized under the provisions of
this act, the board of control of the institu-
tion in which said person is an inmate shall
file with the State Board of Public Health
of Michigan a written record setting forth
the name, age, sex, nationality, type or class
of mental defectiveness of said person, the
nature of the operation performed, the subse-
quent mental and physical condition as
affected by said operation: Provided, that
said records shall not be for public inspec-
tion, but may be open to inspection of the
members of the board of control of the
aforesaid institutions and of the members
of the immediate family of the person oper-
ated upon, or any physician or surgeon
designated by them.
Section S. Except as authorized by this
act, every person who shall perform, encour-
age, assist in, or otherwise promote the per-
formance of either of the operations
described in section one of this act, for the
purpose of destroying the power to pro-
create the human species, or any person
who shall knowingly permit either of such
operations to be performed upon such
person, unless the same shall be a medical
necessity, shall be guilty of a felony, and
upon conviction thereof shall be fined not
more than one thousand dollars, or impris-
oned in the state prison not more than five
years, or both, at the discretion of the court
before whom the said person or persons
were so convicted.
11. KANSAS.
(a) First Law.
Date of Law: June 1, 1913.
The bill was introduced on February 7,
1913, by Representative A. B. Scott, of Jet-
more, Kansas.
It passed the House and the Senate March
10, 1913.
It was returned unsigned March 14, 1913,
by Governor George H. Hodges, and be-
came a law without his signature.
It appears on the Kansas statutes as
Chapter 305, pages 525-536 of the Session
Laws of 1913.
AN ACT to prevent the procreation of
habitual criminals, idiots, epileptics, imbe-
ciles, and insane, and providing a penalty fof
the violation thereof.
Be it enacted by the Legislature of the
State of Kansas:
Section 1. That it shall be the duty of
managing officers of all state institutions
of this state entrusted with the care and
custody of habitual criminals, idiots, epilep-
tics, imbeciles and insane, and they are
hereby authorized and directed to obtain
the advice and professional services of com-
petent surgical assistants,, who, jointly with
the physician or surgeon in charge of the
institution in which any of such inmates
shall be, shall constitute the authority whose
duty it shall be to examine such inmate or
inmates of the several institutions as are
deemed to be improper and inadvisable to
allow to procreate. Such authority shall
examine the physical and mental condition
of such inmate or inmates, the history
thereof so far as can be ascertained, and
if, in the judgment of such authority, pro-
creation by any such inmate or inpates
would produce children with an inherited
tendency to crime, insanity, feeble-minded-
ness, epilepsy, idiocy, or imbecility, and
there is no probability that the condition
of any such inmate or inmates so examined
will improve to such an extent as to ren-
der procreation by any such inmate or in-
mates advisable, or if the physical or men-
30
LegisIvATive Records of the Sterilization Laws
tal condition of any such persons will be
materially improved thereby, then said
authority shall report their conclusions with
a recommendation to the district court or
any court of competent jurisdiction in and
for the district from which such inmate
or inmates has been committed to such
institution or institutions. The court shall
thereupon hear and determine the matter,
and if satisfied that the subject is an hab-
itual criminal within the meaning of this
act, or is insane, an idiot, imbecile or an
epileptic, and that the purposes of this act
will be accomplished by such order, shall
adjudge that such operation shall be per-
formed, and shall appoint one of the
authority signing such report to perform
the operation of vasectomy or oopho-
rectomy, as the case may be, upon such per-
son. The county attorney of the county in
which the hearing is had may be directed by
the court to represent the state in the pro-
ceedings. Such operation shall be per-
formed in a safe and humane manner, and
the surgeon performing the operation shall
receive from the state such compensation for
'the service rendered as the board of adminis-
tration shall deem reasonable, to be paid out
of the maintenance fund of the institution
in which such person is confined. Pro-
vided, An habitual criminal within the mean-
ing of this act shall be a person who has
been convicted of some felony involving
moral turpitude.
Section 2. Except as authorized by this
act, every person who shall perform, encour-
age, assist in, and otherwise promote the
performance of either of the operations de-
scribed in section 1 of this act, for the pur-
pose of destroying the power to procreate
the human species, or any person who shall
knowingly permit either of such operations
to be performed upon such person, unless
the same shall be a medical necessity, shall
be fined not more than one thousand
($1,000.00) dollars, or imprisoned in the
county jail not exceeding one (1) year, or
both.
Section 3. Any managing officers herein
charged with any duty specified in section
1, who shall fail, neglect or refuse for sixty
days or more in the performance thereof,
shall be guilty of a misdemeanor and sub-
ject to a fine of not more than one hundred
dollars, or imprisonment in the county jail
for not more than thirty days, or both such
fine and imprisonment.
Section 4. This act shall take eflfect and
be enforced from and after its publication in
the statute book.
(b) Second Law.
Date of Law: May 86, 1917.
The bill was introduced on January 27,
1917, by Representative W. A. S. Bird of
Topeka, Kansas.
It passed the House February 14, 1917—
78 ayes, 15 noes; the Senate March 8, 1917—
28 ayes, 4 noes.
It was approved March 13, 1917, by Gov-
ernor Arthur Capper.
It appears on the Kansas statutes as Chap-
ter 299 of the Session Laws of 1917.
AN ACT to prevent the procreation of
habitual criminals, idiots, epileptics, imbeciles
and insane, and providing penalties for the
violation thereof, and repealing sections 9967,
9968, and 9969 of the General Statutes of
1915. (Chapter 305, pages 525-526, of the
Session Laws of 1913.)
Be it enacted by the Legislature of the State
of Kansas:
Section 1. That the warden o£ the State
Penitentiary, the superintendent of the
Hutchinson Reformatory, the superintendent
of each of the State Hospitals for the In-
sane, the State Hospital for Epileptics, the
State Home for Feeble-Minded, or the
State Industrial School for Girls, shall cer-
tify in writing to the governing board of
the institution of which he or she is warden
or superintendent, that he or she believes
that the mental or physical condition of any "
inmate would be improved thereby or that
procreation by any such inmate would be
likely to result in defective or feeble-minded
children with criminal tendencies, and that
the condition of such inmate is not likely
to improve so as to make procreation by
such person desirable or beneficial to the
state, it shall be lawful to perform a surgical
operation for the sterilization of such in-
mate as hereafter provided, and shall not ren-
der the board of examiners, its members or
any person participating in the operation
liable either civilly or criminally. But before
such operation shall be performed a written
notice shall be served on such inmate, and
guardian, if there be one, of the time and
place of a meeting and hearing at least
thirty days prior thereto; and said inmate
shall have the right to be represented by
counsel and may introduce such evidence
as may be desired.
Legislative Records of the STERiLizAfioN Laws
31
Section 2. For the purpose of carrying
into effect the provisions of this act, the
chief medical officer of any such institution,
the governing board of such institution, and
the secretary of the State Board of Health,
shall constitute a board of examiners for
such institution.
Section 3. When the warden or super-
intendent of any such institution shall deem
it advisable that such operation be per-
formed on any one or more of the inmates,
it shall be his or her duty to make such
recommendation in writing, signed by him
or her, to the chairman of the governing
board of such institution, whereupon the
chairman of such governing board shall
forthwith call a meeting of such board of
■examiners, to be held at such institution
at a date not more than fifteen days after
the issuance of such call. The call shall
clearly set forth the date and object of such
meeting and shall contain the names of all
inmates whose cases are to be considered
at such meeting.
Section 4. At such meeting such board
of examiners shall diligently inquire into
the mental and physical conditon of each
inmate so considered, and as far as prac-
ticable into his or her farrflly history and
for that purpose any member of said board
may administer an oath to any witness
whom it is desired to examine.
Section 5. After fully inquiring into the
condition of each such person, such board
of examiners shall make separate written
findings for each of the persons whose con-
dition has been inquired into, and such
findings shall either order that such inmate
be sterilized or not, and if the board in its
findings order sterilization for the inmate,
it shall, in its findings, designate what opera-
tion is to be performed and its purpose; if
a male person, either the operation of
vasectomy or asexualization; if a female,
either the operation of salpingectomy or
oophorectomy; and shall designate some
competent surgeon, who may either be con-
nected with such institution or otherwise,
who shall perform the operation. If the
surgeon is not connected with such institu-
tion, the governing board can make reason-
able terms for compensation and such fee
shall be paid from the fund provided for
the maintenance of such institution in the
manner provided by law.
Section 6. Such institution shall keep all
files in any proceedings under this act and
full minutes of such meetings, and for that
purpose the chief medical officer of such
institution shall be the secretary of such
board of examiners and custodian of its
records.
Section 7. Except as authorized by this
act, every person who shall perform, en-
courage, assist in or otherwise promote the
performance of either of the operations de-
scribed in this act, for the purpose of de-
stroying the power to procreate the human
species, unless the same shall be a medical
necessity, shall be fined not less than $100.00
nor more than $500.00 and imprisoned in the
county jail not less than six months nor
exceeding one year.
Section 8. Sections 9967, 9968, and 9969
of the General Statutes of 1915 are hereby
repealed.
Section 9. This act shall take effect and
be in force from and after its publication in
the statute books.
Note: Sections 9967, 9968 and 9969 of
the General Statutes of 1915 are the codi-
fied reference to Chapter 305 of the Session
Laws of 1913 — this being the first eugenical
sterilization law of Kansas.
12. WISCONSIN.
Date of Law: July 31, 1913.
The bill was introduced by Senator
George E. Hoyt, of Menomonee Falls, Wis-
consin.
It passed the Senate July 9, 1913—34
ayes, 3 noes; the House July 35, 1913—39
ayes, 37 noes.
It was approved July 30, 1913, by Gov-
ernor Francis E. McGovern.
It appears on the Wisconsin statutes as
Chapter 693 of the Laws of 1913.
AN ACT to create section 56ljm of the
statutes, relating to the prevention of
criminality, insanity, feeble-mindedness and
epilepsy.
The people of the State of Wisconsin, rep-
resented in Senate and Assembly, do enact
as follows:
Section 1. There is added to the stat-
utes a new section to read: Section 561jm.
The state board of control is hereby author-
ized to appoint from time to time one sur-
geon and one alienist of recognized ability,
whose duty it shall be, in conjunction with
the superintendents of the state and count}
institutions who have charge of the criminal
insane, feeble-minded and epileptic persons,
to examine into the mental and physical con-
ditions of such persons legally confined in
such institutions.
32
IvEGISLATlVU RECORDS OF THE STERILIZATION L,AWS
Section 2. Said board of control shall at
such times as it deems advisable submit to
such experts and to the superintendent of
any of said institutions the names of such
inmates of said institution whose mental and
physical condition they desire examined, and
said experts and the superintendent of said
institution shall meet, take evidence and
examine into the mental and physical condi-
tion of such inmates and report said mental
and physical condition to the said state board
of control.
Section 3. If such experts and superin-
tendent unanimously find that procreation is
inadvisable it shall be lawful to perform such
operation for the prevention of procreation
as shall be decided safest and most effective;
provided, however, that the operation shall
not be performed except in such cases as
are authorized by the said board of control.
Section 4. Before such operation shall
be performed it shall be the duty of the
state board of control to give at least thirty
days' notice in writing to the husband or
wife, parent or guardian, if the same shall
be known, and if unknown, to the person
with whom such inmate last resided.
Section 5. The said experts shall receive
as compensation a sum to be fixed by the
state board of control, which shall not ex-
ceed ten dollars per day and expenses, and
such experts shall only be paid for the actual
number of days consumed in the perform-
ance of their duties.
13. NEBRASKA.
Date of Law: July 8, 1915.
The bill was introduced on January 11,
1915, by Senator H. P. Shumway, of Wake-
field, Nebraska.
It passed the Senate, January 11, 1915 —
21 ayes, 12 noes; the House, April 8, 1915 —
52 ayes, 35 noes.
It became a law without the signature of
the Governor, John H. Morehead.
It appears on the Nebraska statutes as
Chapter 237 of the Session Laws of 1915.
AN ACT to authorize the sterilization of
feeble-minded and insane inmates of state
institutions, in certain cases, and to provide
for the appointment of a commission, and
to define their powers and duties in connec-
tion therewith.
Be it enacted by the People of the State
of Nebraska:
Section 1. Hereafter no feeble-minded
or insane inmate, physically capable of bear-
ing or begetting offspring, shall be paroled
or discharged from the institution for the
feeble-minded, or the hospitals for the insane,
nor paroled from the penitentiary, reforma-
tory, industrial home, industrial schools or
other such state institution, except as herein-
after provided, or by order of a court of
competent jurisdiction.
Section 2. Immediately after the act shall
have gone into effect the board of commis-
sioners of state institutions shall designate
five physicians from the medical staffs of the
state institutions under their jurisdiction, to
constitute a board of examiners of defectives,
three of which physicians shall be appointed
from the institution for feeble-minded youth
and the hospitals for the insane. Three
members of such examining board shall
constitute a quorum, and every determina-
tion or order of said board must be con-
curred in by at least three members thereof.
The members of said board of examiners
shall receive no compensation for their serv-
ices as such examiners, but shall be reim-
bursed their actual and necessary traveling
expenses from the funds of the respective
institutions whose inmates are examined by
them. The personnel of said board of
examiners may be changed from time to
time by said board of commissioners of state
institutions as may be found necessary or
convenient.
Section 3. It shall be the duty of the
examiners to examine into the innate traits,
the mental and physical conditions, the per-
sonal records, and the family traits and
histories of all inmates who may be subject
to parole or discharge from the institution
for the feeble-minded, hospitals for the
insane, the penitentiary, reformatory, indus-'
trial schools, industrial home, or other such'
state institution, and if after a careful exami-
nation and investigation, such board of
examiners find that such inmate is feeble-
minded, or insane, that such inmate is capable
of bearing or begetting offspring, that chil-
dren borne or begotten by such inmate would
inherit a tendency to feeble-mindedness,
insanity, or degeneracy, that such children
would probably become a social menace and
that procreation by such inmate would be
harmful to society, and that such inmate
should not be paroled or discharged, as the
case may be, unless sterilized, then in every
such case it shall be a condition prerequisite
to the parole or discharge of such inmate
that said inmate be made sterile, and that
such operation be performed for the preven-
Legislative; Records of the Steriuzation Laws
33
tion of procreation as in the judgment of
said board of examiners shall be most appro-
priate to each individual case.
Section 4. Before any such operation
shall be performed, the nature, character and
consequences of such operation shall be fully
explained to such inmate and to the husband,
wife, parent, guardian or nearest kin of such
inmate and no such operation shall be per-
formed without the written consent of such
husband, wife, parent, guardian, or nearest
kin, as the case may be, and the assent of
such inmate so far as said inmate is capable
of assenting thereto.
Section 5. Said operation shall be per-
formed at the institution of which such
person is an inmate in the presence of a
member of the examining board, and either
by one of the surgeons on the staflf of a
state institution or by some surgeon selected
and paid by the hustand, wife, parent, guard-
ian or nearest of kin of said inmate.
14. OREGON.
Date of Law: May 21, 1917.
The bill was introduced on January 19,
1917, by Representative Arthur K. Peck, of
Marshfield, Oregon.
It passed the House, February 1, 1917 —
37 ayes, 18 noes; the Senate, February 16,
1917—16 ayes, 12 noes.
It was approved February 19, 1917, by
Governor James Withycombe.
It appears on the Oregon statutes as
Chapter 279 of the General Laws of Oregon,
1917.
AN ACT to prevent the procreation of
feeble-minded, insane, epileptic, habitual
criminals, moral degenerates and sexual per-
verts, who may be inmates of institutions
maintained by public expense, by authorizing
and providing for the sterilization of persons
with inferior hereditary potentialities.
Be it enacted by the People of the State
of Oregon:
Section 1. There is hereby established
and constituted for the State of Oregon a
State Board of Eugenics which shall be com-
posed of the State Board of Health, the
Superintendent of the Oregon State Hos-
pital, the Superintendent of the Eastern
Oregon State Hospital, the Superintendent
of the State Institution for Feeble-Minded,
and the Superintendent of the Oregon State
Penitentiary, whose duties shall be as herein-
after defined. The secretary of the State
Board of Health shall serve as the secretary
of said Board, and the members of said
Board shall serve without compensation.
Section 2. It shall be, and it is hereby
declared, the duty of the Superintendent of
the Oregon State Hospital, and Superintend-
ent of the Eastern Oregon State Hospital,
and the Superintendent of the Oregon State
Penitentiary to report quarterly to the State
Board of Eugenics, all feeble-minded, insane,
epileptic, habitual criminals, moral degener-
ates and sexual perverts, who are persons
potential to producing offspring who, because
of inheritance of inferior or antisocial traits,
would probably become a social menace, or
a ward of the State.
Section 3. It shall be the duty of the
State Board of Eugenics to examine into
the innate traits, the mental and physical
conditions, the personsal- records, and the
family traits and histories of all persons so
reported, so far as the same can be ascer-
tained, and for this purpose said Board shall
have the power to summon witnesses, and
any member of said Board may administer
an oath to any witness whom it is desired
to examine; and if in the judgment of a
majority of the said Board procreation by
any such person would produce children with
an inherited tendency to feeble-mindedness,
insanity, epilepsy, criminality or degeneracy,
and there is no probability that the condition
of such person so examined will improve to
such an extent as to render procreation by
any such person advisable, or if the physical
or mental condition of any such person will
be substantially improved thereby, then it
shall be the duty of said Board to make an
order directing the superintendent of the
institution in which the inmate is confined to
perform or cause to be performed upon such
inmate such a type of sterilization as may
be deemed best by said Board.
Section 4. The purpose of said investiga-
tion, findings and orders of said Board shall
be for the betterment of the physical, mental,
neural, or psychic condition of the inmate,
or to protect society from the menace of
procreation by said inmate, and not in any
manner as a punitive measure; and no person
shall be emasculated under the authority of
this Act except that such operation shall be
found to be necessary to improve the physi-
cal, mental, neural, or psychic condition of
the inmate.
Section 5. After fully inquiring into the
condition of each of such inmates said Board
shall make separate written findings for each
of the inmates whose condition has been
examined into, and the same shall be pre-
served in the records of the said Board, and
34
I/EGisivATivE Records of the Steriuzation Laws
a copy thereof shall be furnished to the
superintendent of the institution in which
the inmate is confined, and if an operation is
deemed necessary by said Board, then a copy
of the order of said Board shall forthwith
be served on said inmate, or in case of an
insane person upon his legal guardian, and
if such insane person have no legal guardian,
then upon his nearest known kin within the
State of Oregon, and if such person have no
known kin within the State of Oregon, then
upon the custodian guardian of such insane
person.
Section 6. Any such inmate desiring to
appeal from the decision of the said Board,
or in case the person is under guardianship
or disability, then the guardian of said
inmate may take an appeal to the circuit
court of the county in which the institution
in which the inmate is confined, is located.
An informal notice of appeal filed with
the secretary of said Board, either by the
inmate or someone in his behalf, shall be
all that is necessary to make the appeal;
provided, said notice shall be filed -within
fifteen days of the date when notice of the
Board's decision is served on the inmate or
his guardian, ,and said notice of appeal shall
stay all proceedings of said Board in said
matter until the same is heard and deter-
mined on said appeal; provided further, that
no operation shall be performed, upon any
inmate, until the time for appeal from the
decision of the Board has expired.
Section 7. Upon an appeal being taken,
the secretary of the said Board where the
notice of appeal is filed, must within fifteen
days thereafter, or such further time as the
court or the judge thereof may allow, trans-
mit a certified copy of the notice of appeal
and transcript of the proceedings, findings,
and order of the Board, to the clerk of the
court appealed to.
The trial shall be a tria,l de novo at law
as provided by the statutes of the State, for
the trial of actions at law. Upon such appeal,
if the inmate be without sufficient financial
means to employ an attorney, then such
attorney shall be compensated by the State
upon order of the court; and it shall be the
duty of the district attorney of the county
wherein such trial is had to represent the
said Board.
Section 8. If the court or jury shall
affirm the findings of said Board, said court
shall enter a judgment, adjudging that the
order of the said Board shall be carried out
as herein provided; if the court fail to affirm
the decision of said Board, appealed from,
then said order shall be null and void and
of no further effect.
Section 9. Upon the receipt of the order
from the State Board of Eugenics provided
for in Section 3, the superintendent of the
institution to which it is directed shall, after
the time for appeal has expired, or in case
of appeal upon the entering of a judgment
affirming the order of the Board, and it is
hereby made his lawful duty to perform, or
cause to be performed, such surgical oper-
ation as may be specified in the order of the
State Board of Eugenics. All operations
shall be performed with a due regard for the
physical condition of the inmate and in a
safe and humane manner.
Section 10. The criminals who shall
come within the operation of this law shall
be those who have been convicted three or
more times of a felony in the courts of any
state and sentenced to serve in the peniten-
tiary therefor.
Moral degenerates and sexual perverts are
those who are addicted to the practice of
sodomy or the crime against nature, or to
other gross, bestial and perverted sexual
habits and practices prohibited by statute.
Section 11. The provisions of this Act
shall apply to both male and female inmates
of any of the institutions designated herein.
Section 12. The State shall be liable,
under this Act, only for the actual traveling
expenses of the members of the Board in-
curred in the performance of their duties,
and the actual and necessary expense incident
to the investigations of said Board and an
appeal therefrom.
16. SOUTH DAKOTA.
Date of Law: July 1, 1917.
The bill was introduced on February 20,
1917, by Senator A. R. Labire of Doland,
South Dakota.
It passed the Senate February 27, 1917—
34 ayes, 9 noes; the House, February 28,
1917 — 81 ayes, 4 noes.
It was approved March 8, 1917, by Gov-
ernor Peter Worbeck.
It appears on the South Dakota statutes
as Chapter 336 (S. B. 257) of the Session
Laws of 1917.
RELATING TO THE OPERATION OF
VASECTOMY.
AN ACT entitled, An Act for the Pre-
vention of the Procreation of Idiots, Imbe-
ciles and Feeble-minded Persons.
Be it enacted by the Legislature of the
State of South Dakota:
Legislative Records of the Sterilization Laws
35
Section 1. Sterilization of Defectives.
It shall be the duty of the superintendent
of the State Home for Feeble-Minded
Persons to examine into the mental and
physical condition, the records and family
history of the inmates of said institution with
a view of determining whether it is improper
or inadvisable to allow any such inmates to
procreate, and to make an annual report of
said examinations to the State Board of
Charities and Corrections.
Section 8. Duty of Board. That it shall
be the duty of said Board with the superin-
tendent of said institution to carefully
examine the record of each inmate and to
determine whether it is improper or inadvis-
able to allow any such inmates to procreate,
and if a majority of them, including such
superintendent, decide that the procreation
by any of said inmates would produce chil-
dren with a tendency to disease, feeble-
mindedness, idiocy or imbecility, or, if the
mental condition of any such inmate will
probably be materially improved thereby,
then the physician of the institution or one
selected by him, shall perform the operation
of vasectomy or ligation of the Fallopian
tubes, as the case may be, upon such person.
Section 3. Record. The superintendent
of the Home for Feeble-Minded shall keep a
record of all inmates operated on, with sta-
tistics and notes or observations regarding
its benefits, and make an annual report to the
Governor of all inmates operated on, with
the recorded results of said operation.
B. EUGENICAL STERILIZATION
BILLS VETOED.
The Governors of Pennsylvania (1905,
Pennypacker; 1921, Sproul), Oregon (1909.
Chamberlin), Vermont (1913, Fletcher), Ne-
braska (1913, Morehead), and Idaho (1919,
Davis) have vetoed sterilization bills passed
by their respective legislatures. In addition
to this series of vetoes, Oregon in 1913, de-
clined on referendum, by vote of 41,767 for
and 53,319 against, to ratify a proposed steril-
ization law. Of these five states, however,
Nebraska (1915) and Oregon (1917) finally
succeeded in securing sterilization statutes
which are now in force. Thus, disregarding
the executive vetoes, the legislatures of
eighteen dififerent states have passed steriliza-
tion bills.
We learn also that serious legislative
efforts to enact laws of this sort have been
made in the legislatures of Illinois, Minne-
sota, New Hampshire, Ohio and Indiana.
We may make a short summary of the
matter by saying that since 1907, practically
half of the several states of the Union have
taken seriously legislative consideration of
the possibilities of improving the natural
qualities of its citizenry by means of eugeni-
cal sterilization. (See page 44, Bulletin 10 B,
Eugenics Record Office, 1914.)
The full texts of eugenical sterilization
bills and veto messages follow:
1. PENNSYLVANIA.
(A.) Veto of 1905.
Senate Bill 35.
Passed March 21, 1905.
Vetoed March 30, 1905.
a. TEXT OF BILL.
AN ACT for the prevention of idiocy.
Whereas, Heredity plays a most impor-
tant part in the transmission of idiocy and
imb ecility ; therefore,
Section 1. Be it enacted, etc.. That on the
first day of July after the passage of this bill,
it shall be compulsory for each and every
institution in the state, entrusted exclusively
or especially with the care of idiots and imbe-
cile children, to appoint upon its staff at
least one skilled surgeon, of recognized
ability, whose duty it shall be, in conjunction
with the chief physician of the institution to
examine the mental and physical condition
of the inmates.
If, in the judgment of this Committee of
Experts and Board of Trustees, procreation
is inadvisable, and there is no probability
of improvement of the mental condition of
the inmate, it shall be lawful for the surgeon
to perform such operation for the prevention
of procreation as shall be decided safest and
most effective; but this operation shall not
be performed except in cases that have been
pronounced non-improvable after one year's
test in institution.
b. VETO MESSAGE.
Commonwealth of Pennsylvania
Executive Department
Harrisburg, March 30, 1905.
To the Honorable, the Senate of the Com-
monwealth of Pennsylvania:
Gentlemen: I return herewith, without
my approval Senate Bill No. 35, entitled,
"An Act for the prevention of idiocy."
This bill has what may be called with
propriety an attractive title. If idiocy could
be prevented by an act of assembly, we may
be quite sure that such an act would have
long been passed and approved in this state,
and that such laws would have been enacted.
36
IvEGisivATivE Records of the Sterilization Laws
in all civilized countries. The subject of the
act is not the prevention of idiocy, but it is
to provide that in every institution in the
state, entrusted with the care of idiots, and
imbecile children, a neurologist, a surgeon
and a physician shall be authorized to per-
form an operation upon the inmates "for the
prevention of procreation." What is the
nature of the operation is not described but
it is such an operation as they shall decide
to be "safest and most effective." It is plain
that the safest and most effective method of
preventing procreation would be to cut the
heads off the inmates, and such authority is
given by the bill to this staff of scientific
experts. It is not probable that they would
resort to this means for the prevention of
procreation, but it is probable that they
would endeavor to destroy some part of the
human organism. Scientists, like all other
men whose experiences have been limited to
one pursuit, and whose minds have been
developed in a particular direction, some-
times need to be restrained. Men of high
scientific attainments are prone, in their love
for technique, to lose sight of broad prin-
ciples outside of their domain of thought.
A surgeon may possibly be so eager to
advance in skill as to be forgetful of the
danger to his patient. Anatomists may be
willing to gather information by the inflic-
tion of pain and suffering upon helpless
creatures, although a higher standard of
conduct would teach them that it is far
better for humanity to bear its own ills than
to escape them by knowledge only secured
through cruelty to other creatures. This bill,
whatever good might possibly result from
it if its provisions should become a law,
violates the principles of ethics. These
feeble-minded and imbecile children have
been entrusted to the institutions by their
parents or guardians for the purpose of
training and instruction. It is proposed to
experiment upon them, not for their instruc-
tion, but in order to help society in the
future. It is to be done without their con-
sent, which they cannot give, and without
the consent of their parents or guardians,
who are responsible for their welfare. It
would be in contravention of the laws which
have been enacted for the establishment of
these institutions. These laws have in con-
templation the training and the instruction
of the children. This bill assumes that they
cannot be so instructed and trained. More-
over, the course it is proposed to pursue
would have a tendency to prevent such train-
ing and instruction. Everyone knows,
whether he be a scientist or an ordinary
observer, that to destroy virility is to lessen
the capacity, the energy and the spirit which
lead to effort. The bill is, furthermore,
illogical in its thought. Idiocy will not be
prevented by the prevention of procreation
among these inmates. This mental condi-
tion is due to causes many of which are
entirely beyond our knowledge. It existed
long before there were ever such inmates
of such institutions. If this plan is to be
adopted, to make it effective it should be
carried into operation in the world at large,
and not in institutions where the inmates are
watched by nurses, kept separate, and have
all the care which is likely to render pro-
creation there very rare, if not altogether
impossible. In one of these institutions, I
am reliably informed, there have only been
three births in ten years. A great objection
is that the bill would encourage experimen-
tation upon living animals, and would be
the beginning of experimentation upon liv-
ing human beings, leading logically to results
which can readily be forecasted. The chief
physician, in charge at Elwyn, has candidly
told us, in an article recently published upon
"Heredity," that "Studies in heredity tend
to emphasize the wisdom of those ancient
peoples who taught that the healthful de-
velopment of the individual and the elimina-
tion of the weakling was the truest patriot-
ism— springing from an abiding sense of the
fulfillment of a duty to the state."
To permit such an operation would be to
inflict cruelty upon a helpless class in the
community which the state has undertaken
to protect. However skillfully performed,
it would at times lead to peritonitis, blood
poisoning, lockjaw and death.
For these reasons the bill is not approved.
SAML. W. PENNYPACKER.
Note: No attempt was made to pass this
bill over the Governor's veto. In fact the
Governor vetoed the bill after the adjourn-
ment of the Legislature.
(B.) Veto of 1921.
SENATE BILL 560.
Date of sterilization bill April 28, 1931.
The bill was introduced by Dr. George
Woodward of Philadelphia, Pa.
It passed the Senate April 11, 1921—36
ayes, 5 noes.
It was vetoed by the Governor May 26,
1921.
L,EGisi<ATivE Records op the Sterilization Laws
37
a. TEXT OF BILL.
AN ACT
To provide for the sterilization of inmates of
institutions having the care and custody of
idiotic, imbecile, epileptics, feeble-minded
and insane persons in cases where such
sterilization will materially improve the
m.ental or physical condition of such per-
sons and in cases where owing to the
idiocy, imbecility, insanity or feeble-
mindedness of such persons not being in
permanent custody procreation by such
persons would produce offspring similarly
affected.
Section 1. Be it enacted by the Senate
and House of Representatives of the Com-
monwealth of Pennsylvania in General As-
sembly met and it is hereby enacted by the
authority of the same. That within ninety
days after the first day of July one thousand
nine hundred and twenty-one the board of
trustees, managers or directors of each insti-
tution having the care and custody of idiots,
imbeciles, epileptics, insane or feeble-minded
persons which institution is supported in
whole or in part by appropriations made for
that purpose by the General Assembly shall
constitute and appoint a commission to con-
sist of at least one competent neurologist
and one surgeon of recognized ability who
may be appointed from the regular staff of
such institution, the duty of which commis-
sion< shall be to examine the mental and
physical condition of the inmates of such
institution and the personal records and
family traits and histories thereof and to
determine and report in writing to the board
of trustees, managers or directors of said
institution from time to time.-
(a) In what, if any cases, the physical or
mental condition of an inmate will be mate-
rially benefited by sterilization, there being
no probability that such condition of the
inmates can be otherwise improved, and
(b) In what, if any cases, the condition
of an inmate is such that by reason of his
or her imbecility, idiocy, insanity, epilepsy
or feeble-mindedness procreation by the
inmate would produce offspring similarly
affected and there is no probability that the
condition of such inmate will improve to
such an extent as to render procreation by
said inmate advisable. The said Commission
shall accompany said reports with specific
recommendations for the sterilization of the
inmates reported upon with the reasons
therefor and the method of sterilization
recommended in such case.
Section 2. Upon the receipt of any such
report and accompanying recommendations
the said board of trustees, managers or di-
rectors of said institution shall consider the
same and pass separately upon the case of
each inmate recommended for sterilization,
and if they approve any such recommenda-
tion by an affirmative vote of not less than
three-fourths of the members of the board,
they shall record upon their minutes an order
for the sterilization of the inmate so recom-
mended therefor, specifying in each case the
manner in which the case shall be effected;
but the sterilization of no inmate in perma-
nent custody shall be ordered unless it shall
appear from the report of the commission
that the mental or physical condition of such
inmate will be materially benefited thereby,
and that such condition cannot probably be
otherwise improved. The said board of
trustees, managers or directors shall there-
upon present their _petition to the court of
common pleas of the county wherein such
institution shall be located, reciting the
recommendations of said commission and
the action taken thereon by said board of
trustees, managers or directors, and praying
for an order of said court approving the
order made in each case by the said board
and directing the execution thereof.
Section 3. The said court shall there-
upon set a day for the hearing of said peti-
tion and order that notice in writing of the
time and place and nature of such hearing
shall be given to the nearest kin, guardian,
committee or other legal representative of
each person so ordered to be sterilized as the
court may designate. If it shall appear to
the satisfaction of the court that such person
has no kindred, guardian, committee or other
legal representative or that his or her nearest
kin, guardian, committee or other legal
representative is financially unable to employ
counsel to represent them the court may, in
its discretion, appoint counsel to represent
the person ordered to be sterilized or his or
her nearest kin, guardian, committee or other
legal representative at such or any further
hearing or proceeding and fix the compensa-
tion for the services of such counsel, which
compensation shall be paid upon the order
of the court by the county wherein such
person so ordered to be sterilized has his or
her legal settlement in Pennsylvania; or if
he or she has no legal settlement therein
then by the county wherein said institution
is located.
Section 4. At the said hearing and the
38
Legislative Records op the Sterilization Laws
subsequent proceedings the board of trustees,
managers or directors of said institution shall,
if they so request, be represented by an
assistant Attorney General. If at such hear-
ing the court is satisfied that the persons
ordered to be sterilized, or any of them, are
severally potential to produce ofifspring, and
that either
(a) Their mental or physical condition
will be materially benefited by sterilization,
and that such condition cannot probably be
otherwise improved, or
(b) That by reason of their imbecility,
idiocy, insanity, epilepsy or feeble-minded-
ness procreation by such persons not being
in permanent custody would produce off-
spring similarly affected and there is no
probability that the condition of such per-
sons will improve to such an extent as to
render procreation by them advisable, then
The said court shall order and direct that
the order of said board o^f trustees, managers
or directors be approved so far as the same
relates to the sterilization of persons con-
cerning the condition of which the court is
satisfied as above with such modifications
as may to the court seem proper and order
and direct that the same be carried into
execution unless an appeal from such find-
ings and order shall be taken to the Supe-
rior Court within thirty days from the filing
of the same either by the board of trustees,
managers or directors presenting said peti-
tion or the representatives as above enumer-
ated of any person directed to be sterilized
by such order and the said Superior Court
shall have power to review and affirm,
modify or disapprove such findings and order
and such appeal shall operate as a super-
sedeas.
Section 5. When the order of any such
board of trustees, managers or directors of
any such institution for the sterilization of
an inmate of such institution shall have been
approved by the proper court of common
pleas as aforesaid and no appeal to the Supe-
rior Court shall have been taken from the
order of said court approving the same
within thirty days after the filing of such
order or if any such appeal shall have been
taken then at any time after the filing of a
decree of the Superior Count affirming the
findings and order of the said court of com-
mon pleas in the premises the person ordered
to be sterilized in said order shall be steri-
lized by the surgeon member of the com-
mission recommending such sterilization or
■ by such other skilled surgeon as the board
of trustees, managers or directors of said
institution may select and designate in the
manner designated in the order of said board
unless otherwise directed by the court
approving said order or by the Superior
Court on appeal and any expense incurred
thereby shall be defrayed by such institution.
The aforesaid order shall constitute complete
authority for the performance of said oper-
ations and no surgeon performing the same
shall be held responsible in any place for
the performance thereof.
Section 6. It shall be the duty of the
commissions appointed by the boards of
trustees, managers or directors of each of
the institutions aforesaid to keep a perma-
nent record of all cases and histories
examined into and of all reports and recom-
mendations made by them and of all orders
made and received by them and all oper-
ations performed pursuant to their recom-
mendations and to annually make a report in
writing of such records to the Commissioner
of Health of Pennsylvania. The cost of all
legal proceedings not otherwise hereinbefore
provided for shall be paid by the counties
in which the inmates concerning which such
proceedings are had shall have their re-
spective legal residences or if such inmates
have no legal residence then at the cost of
the county in which the institution of which
they are severally inmates is located.
b. VETO MESSAGE.
May 25th, 1921.
I file herewith, in the office of the Secre-
tary of the Commonwealth, with my objec-
tions. Senate Bill No. 560, entitled "An act
to provide for the sterilization of inmates
of institutions having the care and custody
of idiotic, imbecile, epileptics, feeble-minded
and insane persons in cases where such
sterilization will materially improve the
mental or physical condition of such persons,
and in cases where, owing to the idiocy,
imbecility, insanity or feeble-mindedness of
such persons not being in permanent
custody, procreation by such persons would
produce offspring similarly affected."
This Bill is in clear violation of Section 1
of the Fourteenth Amendment of the Consti-
tution of the United States, which provides
that no State shall deny to any person within
its jurisdiction the equal protection of the
laws.
If the State of Pennsylvania has the power
to pass an Act of this kind, providing for a
surgical operation upon certain persons, it
can only do so in the exercise of its police
Legislative Records of the Sterilization Laws
39
power, for such operation threatens possibly
the life, and certainly the liberty, of the
persons operated upon. The police power is
the exercise by the Legislature of a State of
its inherent sovereignty to enact and enforce
whatever regulations are, in its judgment,
demanded for the welfare of society at large
in order to secure or to guard its order,
safety, health or morality. The limitation
of this power is that under our system of
government the artificial enhancement of the
public welfare by the forcible suppression
of the constitutional rights of the individual
is inadmissible. If the State, under the
exercise of this police power, has the right
to pass an Act to sterilize idiots, imbeciles,
epileptics, and feeble-minded and insane
persons who are inmates of certain institu-
tions, it can have such right only in order
to guard the health of the people of the
Commonwealth. If such a power exists in
the case of idiots, imbeciles, epileptics, and
feeble-minded and insane persons in institu-
tions, and is exercised for the protection of
the public health it may be exercised with
regard to many other diseases, for idiots,
imbeciles, epileptics, and feeble-minded and
insane persons are not the only persons
injuriously aflfecting the welfare of society
by procreation of offspring. If, therefore, the
Legislature may, under the police power,
theoretically benefit the next generation by
the sterilization of persons enumerated in
this Bill, it may and should pursue a like
course with respect to persons affected with
many other communicable diseases of a
character such as to threaten the health of
posterity.
Besides those afflicted with physical or
mental diseases, many other persons might
be undesirable citizens in the opinion of the
majority of a Legislature.
This Bill is based upon a classification of
such a nature that the persons included
within it are not afforded the equal protec-
tion of the laws u"der the Fourteenth
Amendment of the Constitution of the
United States, which provides that no State
shall deny to any person within its juris-
diction the equal protection of the laws. It
relates only to those persons afflicted with
the diseases enumerated in the Bill who are
inmates of institutions maintained in whole
or in part by the State. If the purpose to
be achieved by the Bill is the sterilization
of persons afflicted with the diseases enu-
merated in- order to prevent procreation
and, therefore, protect the health of the
future generations, all persons afflicted with
those diseases should be included within
the terms of the Bill. If the object sought
for requires the sterilization of the class,
then it requires the sterilization of all of
that class, whether they are confined in in-
stitutions maintained in whole or in part
by the State or whether they are not con-
fined. In fact, there is more danger to be
apprehended from persons afflicted with
idiocy, imbecility, epilepsy, feeble-minded-
ness and insanity who are at large than
those who are confined in institutions main-
tained in whole or in part by the State, who
are presumed to be confined in such a man-
ner that they have no opportunities for
procreation.
For these reasons the bill is not ap-
proved.
WM. C. SPROUL.
(C.) Notes on the Situation in Pennsyl-
vania.
(a) Legislative Record of other steriliza-
tion bills in Pennsylvania.
1911, House Bill 500.
Passed House. Passed second
reading in Senate. Recom-
mitted and died in committee
in Senate.
1913, Senate Bill 367.
Died in committee.
1913, House Bill 365.
Defeated on final passage in
House.
1915, House Bill 431.
Died in committee.
1915, House Bill 420.
Died in committee.
1917, House Bill 1263.
Died in committee.
1919, House Bill 673.
Defeated on final passage
in House.
1919, House Bill 375.
Reported from committee
with negative recommenda-
tions.
(b) Many of the institutional, medical
and social authorities of Pennsyl-
vania have been working for the en-
actment of a satisfactory eugenical
sterilization law.
Dr. H. W. Mitchell, Secretary- Treasurer
of the American Medico-Psychological As-
sociation and Superintendent of the State
Hospital at Warren, Pa., prior to the veto
of 1921 wrote (October 16, 1930):
40
IvEGiSLATivE Records of the Sterilization Laws
"I have recently had a long interview
with Dr. Martin, the present head of the
Department, who informs me, that if there
can be practically unanimous support from
the men interested in the conduct of in-
sane hospitals, feeble-minded, etc., he will
see that the bill is re-introduced with the
backing of his Department — providing, fur-
ther, that the example of other States can
be cited in the legislative discussion of the
proposed measure."
"In conversations with men engaged in
similar work in this State, I find that few
of the physicians would care to assume the
sole responsibility of determining when the
provision of the act should be applied to a
concrete case. I should not expect any
wholesale activity under the act, even if it
were passed, but many cases would occur
in the course of hospital operations for a
year to which it could be unquestionably
applied, to advantage of all concerned."
"At this hospital we are quietly using the
method occasionally, with the consent of all
concerned, though the surgical treatment is
given in some general hospital."
James F. McCoy, Executive Secretary of
the Department of Health of the Common-
wealth of Pennsylvania, writes (June 8,
1931):
"Unfortunately, the Eugenical Steriliza-
tion Bill which passed the Legislature in
April was vetoed by Governor Sproul. I
drew the bill under the direction of the
Commissioner of Health, Colonel Edward
Martin, and managed to secure its final
passage but the Governor took the position
that it was too drastic and that the state
was not prepared for it."
2. OREGON.
(A.) Bill vetoed.
Sterilization bill introduced by Coffey.
Senate bill No. 68.
Passed by the House February 17, 1909
— 50 ayes, 5 noes, absent or non-voting 5.
Passed by the Senate February 1, 1909 —
30 ayes, 10 noes, absent or non-voting none. .
Vetoed by Governor Geo. E. Chamberlain
February 33, 1909.
a. TEXT OF BILL.
For an act entitled an act to prevent pro-
creation of confirmed criminals, insane per-
sons, idiots, imbeciles and rapists; providing
that superintendents and boards of man-
agers of institutions where such persons arc
confined shall have the authority and are
empowered to appoint a committee of ex-
perts, consisting of two (3) physicians, to
examine into the mental condition of such
inmates, and to define who shall be deemed
confirmed criminals within the provisions
of this act.
Be it enacted by the people of the State
of Oregon:
Be it enacted by the Legislative Assembly
of the State of Oregon:
Section 1. From and after the passage of
this act it shall be compulsory for each and
every institution in the state intrusted with
the care of confirmed criminals, insane per-
sons, idiots, rapists and imbeciles, to ap-
point upon its staff, in addition to tjie reg-
ular institutional physicians, two (3) skilled
surgeons of recognized ability, whose duty
it shall be, in conjunction with the chief
physician of the institution, to examine the
mental and physical condition of such in-
mates as are recommended by the institu-
tional physician and board of managers. If,
in the judgment of this committee of ex-
perts and the board of managers, procrea-
tion is inadvisable, and there is no prob-
ability of improvement of the mental con-
dition of the inmates, it shall be lawful for
the surgeons to perform such operation for
the prevention of procreation as shall be
decided safest and most effective; but this
operation shall not be performed except in
cases that have been pronounced unimprov-
able.
The term "'confirmed criminals," as con-
tained in this act, shall be deemed to apply
to and include all persons serving a third
term" in any penitentiary or penal institu-
tion upon conviction of a felony.
b. VETO MESSAGE.
Salem, February 32, 1909.
To the President and Members of the
Senate:
I return you herewith Senate Bill No. 68,
with my disapproval. It provides to make
it compulsory for each and every institu-
tion in the State intrusted with the care of
confirmed criminals, insane persons, idiots,
rapists and imbeciles to appoint upon its
staff, in addition to the regular institutional
physicians, two skilled surgeons of recog-
nized ability, whose duty it shall be, in
conjunction with the chief physician of the
institution, to examine the mental and
physical condition of such as are recom-
mended by the institutional physician and
board of managers. If, in the judgment of
this committee of experts and the board of
managers, procreation is inadvisable, and
there is no probability of improved mental
condition of the inmate, it shall be lawful
Legisi^ative Records of the Sterilization Laws
41
for the surgeons to perform such operation
for the prevention of procreation as shall
be decided safest and most effective, but the
operation shall not be performed except in
cases that have been pronounced unim-
provable.
It will be observed from a reading of the
act that incurable insane criminals are so
confused and confounded with each other
that it is difficult to judge whether crim-
inals are to be sterilized because they are,
in fact, mentally unsound or because they
are criminals who are serving a third term in
the penitentiary upon conviction of a felony.
The bill is not drawn to meet the conditions
of institutional life in Oregon, because the
penitentiary is not governed by a board of
managers, but by the Governor of the State,
with the assistance of a superintendent and
wardens, while the asylum is under the
direct supervision of a board of trustees, a
superintendent and a corps of assistants. A
bill departing so radically from established
methods in Oregon ought to be skillfully
framed and remove any ground for mis-
understanding or misconstruction of its
terms.
Besides these objections, I am not entirely
satisfied that all of the class named in the
act ought to be submitted to such harsh
treatment, and if it is to become a law in
this State, greater safeguards should be
thrown around the unfortunate wards of the
State who are mentioned in the act. With-
out these there might be a terrible abuse of
the power attempted to be given those upon
whom the duty is devolved.
I therefore return said measure to you
with my veto.
GEO. E. CHAMBERLAIN,
Governor.
The Oregon bill was promoted by Dr.
Owens-Adair, of Portland. After vetoing
this bill. Governor Chamberlain wrote the
following letter to Dr. Owens-Adair:
Doctor Owens-Adair,
Portland, Oregon.
Dear Mrs. Adair:
After looking over Senate Bill Number
68 I have concluded that it is so loosely
drawn and poorly safeguards the rights of
the unfortunate (against whom it is directed)
that I deemed it my duty to veto it.
When I first talked to you about the
matter, without knowing the terms of the
Bill in detail, I was disposed to favor it,
but I think such a Bill ought to be so care-
fully safeguarded that no abuses could be
practiced against it, and I feel that this is
not the case with the bill under considera-
tion.
I have the honor to remain.
Yours very respectfully,
GEO. E. CHAMBERLAIN.
Note: This bill was laid on table by
Senate January 20, 1911, and never acted
upon.
(B.) Law Revoked by Referendum, Novem-
ber 4, 1913.
a. TEXT OF LAW.
AN ACT
Entitled an act to protect the public peace,
health and safety from habitual criminals,
moral degenerates and sexual perverts; to
require the superintendents of the Oregon
State Insane Asylum, the Eastern Oregon
State Hospital, the State Institution for
Feeble-Minded, and the Oregon State Peni-
tentiary to report quarterly the names, rec-
ords, condition and character of all inmates
of their respective institutions who are hab-
itual criminals, moral degenerates or sexual
perverts; to authorize the State Board of
Health to investigate, or cause to be inves-
tigated, all such cases so reported to it; to
authorize the State Board of Health, in its
discretion, to direct the superintendents of
the said institutions to perform or cause to
be performed, such surgical operations as
may be for the best interests of the public
peace, health and safety.
Be it enacted by the People of tne State
of Oregon:
Section 1. It is hereby declared that hab-
itual criminals, moral degenerates, and
sexual perverts are menaces to the public
peace, health and safety. Habitual crim-
inals are those who have been three or more
times convicted of a felony in the courts of
any State 'and sentenced to serve in the
penitentiary therefor. Moral degenerates
and sexual perverts are those who are ad-
dicted to the practice of sodomy or the
crime against nature, or to other gross,
bestial and perverted sexual habits and prac-
tices prohibited by statute. Any person con-
victed of rape when the oflfense is committed
on a female over the age of consent as fixed
by Lord's Oregon Laws or on a female
under the age of fourteen years with or
without consent, or on a female between the
age of fourteen years and the age of con-
sent, where rape is committed as defined by
Lord's Oregon Laws for rape over the age
42
Legislative Records of the Sterilization Laws
of consent, shall be deemed to be a moral
degenerate under the terms and provisions
of this act; provided, however, that in any
case where the conviction of rape is secured
by circumstantial evidence only, other than
the evidence of the prosecutrix, this law shall
not apply.
Section 2. It shall be, and is hereby de-
clared, the duty of the superintendent of the
Oregon State Insane Asylum, the superin-
tendent of the Eastern Oregon State Hos-
pital, the superintendent of the State In-
stitution for Feeble-Minded, and the super-
intendent of the Oregon State Penitentiary
to report on the first day of each quarter
to the State Board of Health the names, rec-
ord, character, and condition of any and
all inmates of their respective institutions
who may be habitual criminals, moral de-
generates or sexual perverts.
Section 3. Immediately upon its receipt
of the reports provided for in Section 2, the
State Board of Health shall investigate, or
cause to be investigated, each case so re-
ported to it. Such investigation shall be
conducted in a careful and thorough man-
ner and in accordance with the recognized
rules of medical science. A full and com-
plete record of such investigation shall be
prepared and preserved in the records of the
said Board, and a copy thereof shall be fur-
nished to the superintendent of the insti-
tution in which the inmate is confined. If
the said investigation shall disclose that the
inmate, so reported upon, is an habitual
criminal, or is a moral degenerate or a
sexual pervert the said Board shall so cer-
tify in an order to the superintendent of the
institution in which the inmate is confined
directing the said superintendent to per-
form, or cause to be performed, such sur-
gical operation upon the said inmate as, in
the opinion of the said State Board of
Health, may be necessary for the protec-
tion of the peace, health and safety of the
State. Any such inmate, desiring to appeal
from the decision of the said Board, or in
case the person is under guardianship or
disability, then the guardian of said person
may take an appeal to the circuit court of
the county in which the institution, in
which the person is confined, is located. A
notice of appeal shall be all that is necessary
to make the appeal. The Board shall cer-
tify to the said circuit court t;he report of
the investigations hereinbefore described.
The trial on such appeal shall be a trial
de novo at law as provided by the statutes
of this State, for the trial of actions at law.
If the court or jury shall find that the person
accused is a habitual criminal, moral de-
generate or sexual pervert, as hereinbefore
defined, said court shall enter a judgment
ordering that the findings of the said Board
shall be carried out as hereinbefore provided.
Section 4. Upon receipt of the order
from the State Board of Health, provided
for in Section 3, the superintendent of the
institution to which it is directed shall, and
it is hereby made his lawful duty, to perform,
or cause to be performed, such surgical oper-
ation as may be specified in the order of the
State Board of Health. All such surgical
operations shall be performed with a due
regard for the physical, mental and moral
betterment of the inmate and for the pro-
tection of the peace, health and safety of the
public.
Section 5. The provisions of this act
shall apply to both male and female inmates
of any of the institutions designated herein.
Filed in the office of the Secretary of State
February 18, 1913.
b. LEGISLATIVE AND REFEREN-
DUM RECORD.
1. "The bill was introduced on January
15, 1913, by Representative L. G. Lewelling,
of Albany, Oregon. It passed the Senate
by a vote of 16 ayes to 11 noes; the House
by 49 ayes to 8 noes. It was approved on
February 18th by Governor Oswald West.
It was to have appeared on the Oregon
Statutes as Chapter 63, General Laws of
Oregon, 1913, and was designed to take eflFect
on June 3d, 1913, but the referendum was on
May 31st, 1913, legally invoked for Novem-
ber 4th, i913. This held the law in abeyance
pending the decision of the people. In
Oregon it requires the petition of 5 per cent
(in this case 6,312) of the legal voters in
order to invoke the referendum; 8,275 sign-
ers were actually secured. Such a measure
is upheld if it received the indorsement in
referendum of a "majority of the votes cast
thereon." The vote on November 4th, 1913,
was: Yes, 41,767; no, 53,319. The total
Oregon vote for Governor in 1910 was
117,690; for President in 1912 was 137,040.
The vote was therefore apparently represen-
tative of the entire electorate.
The history of the sterilization legislation
in this state is quite remarkable. A law was
vetoed by Governor Chamberlain in 1909;
in 1913 a new law was passed and approved
by Governor West, but was revoked by a
referendum before it went into eflfect. It is
Legislative Records of the Sterilization Laws
43
interesting to learn that not only was the
referendum against the statute led by a
woman, but that a woman physician, Dr.
Owens-Adair, of Warrenton, Oregon, was
the leader in the original movement for legal-
ized eugenical sterilization, and was the
author of the bill vetoed by Governor Cham-
berlain. So far as the committee is aware,
Oregon is the only state having an organized
opposition to sterilization.
The 1913 proposed law was vigorously
opposed by the Anti-Sterilization League, of
which Mrs. Lora C. Little is vice-president.
Through the agency of this league the refer-
endum petition was circulated, and the
requisite number of signers were secured.
In their petition they state:
Referendum Petition.
This is to refer to the people of the state
for their approval or rejection House Bill
No. 69, passed by the Twenty-seventh Legis-
lative Assembly of the State of Oregon, pro-
viding for sterilization of criminals, etc.
Objections to the Act.
1. The act is loosely drawn.
2. The operation is not specified, but may
be whatever the State Board of Health de-
cides upon. Cutting off an arm or leg, or
trepanning the skull, would satisfy the re-
quirements of the law.
3. Sterilization is not specified, but if
intended, there are several operations pos-
sible. Some of these would not in least
alter the criminal tendencies of rapists. This
is the case with the operation now employed
in Indiana, and might be here under this law.
4. The sterilizing operation applied to
women may be a serious one endangering
life.
5. Cutting of the generative organs di-
rectly afifects the brain and lessens the prob-
ability of the cure of the insane. It also
reduces the mental power of the feeble-
minded, virhom the state is now seeking to
raise in power by training and education.
6. The claim that such a law is necessary
to protect the future of the race is unfounded
and wholly disproved by the history of penal
colonies. Virginia and Australia are ex-
amples. Both these communities today rank
high in morals and vitality, though many of
their early settlers were deported criminals.
Australia had 100,000 of these as the founda-
tion of this great commonwealth.
ANTI-STERILIZATION LEAGUE,
Room 705 S wetland Building, Portland.
Phone Main' 4095.
A MEASURE
To protect the public peace, health and safety
from habitual criminals, moral degenerates
and sexual perverts; to require the super-
intendents of the Oregon State Insane
Asylum, the Eastern Oregon State Hos-
pital, the State Institution for Feeble-
Minded, and the Oregon State Peniten-
tiary to report quarterly the names,
records, condition and character of all
inmates of their respective institutions who
are habitual criminals, moral degenerates
or sexual perverts; to authorize the State
Board of Health to investigate, or cause
to be investigated, all such cases so re-
ported to it; to authorize the State Board
of Health, in its discretion, to direct the
superintendents of the said institutions to
perform or cause to be performed, such
surgical operations as may be for the best
interests of the public peace, health and
safety, filed in the office of the Secretary
of State February 18, 1913, to be sub-
mitted to the legal electors of the State^
of Oregon for their approval or rejection
at the SPECIAL ELECTION to be held
NOVEMBER 4, 1913, upon petition for
referendum filed in the office of the Secre-
tary of State May 31, 1913, in accordance
with the provisions of Section 1 of Article
IV of the Constitution of the State of
Oregon.
The following is the form and number in
which the measure will be printed on the
official ballot:
REFERENDUM ORDERED BY PETI-
TION OF THE PEOPLE.
STERILIZATION ACT— Referred by au-
thority of Mrs. Lora C. Little, as Vice-
President, Anti-Sterilization League, No.
7110 43d AvenuCj Portland, Oregon. Its
purpose is to authorize the State Board
of Health to order such surgical operations
as the Board shall adjudge, to be per-
formed upon habitual criminals, moral de-
generates and sexual perverts, both mal^
and female, and defining who shall be con-
sidered as such, the same being persons
confined in some State institution.
Vote YES or NO.
304.
305.
Yes.
No.
3. VERMONT.
Senate Bill 79.
Passed the House January 24, 1913 — 96
yeas, 82 nays; absent or non-voting, none.
44
IvEGiSLATivu Records of thu Sterilization Laws
Passed the Senate, December 30, 1912.
No roll call.
Vetoed by Governor, January 31, 1913.
a. TEXT OF BILL.
AN ACT to authorize and provide for the
sterilization of imbeciles, feeble-minded and
insane persons, rapists, confirmed criminals
and other defectives.
It is hereby enacted by the General As-
sembly of the State of Vermont:
Section 1. A board of examiners of
feeble-minded, criminals and other defectives
is hereby created; and forthwith after the
passage of this act, and biennially thereafter,
the governor shall appoint one neurologist,
one surgeon and one practitioner of medi-
cine, each with at least six years' experience
in the actual practice of his profession, for
the term of two years from and including
the first day of December of the year of
appointment, as members of said board, who
shall be sworn to a faithful discharge of their
., duties. The members of such board shall
be paid ten dollars for each day actually
spent in the performance of their duties, and
their actual and necessary traveling expenses.
A vacancy occurring in said board shall be
filled by the governor for the unexpired
term.
Section 2. Said board shall examine into
the mental and physical condition and the
record and family history of the insane,
feeble-minded, epileptic, criminal and other
defective inmates confined in the hospitals
for the insane, state prison, reformatories,
and charitable and penal institutions in the
state; and if it appears to said board that
procreation by any such person would pro-
duce children with an inherited tendency to
crime, insanity, feeble-mindedness, epilepsy,
idiocy, or imbecility, said board shall appoint
a time and place for hearing thereon within
the town where such person is confined, and
shall deliver to such person a notice in writ-
ing of such hearing, which shall plainly state
• the time, place and purpose thereof, and shall
be delivered to him by some member of said
board not less than six nor more than thirty
days before the day of said hearing. Said
board shall be present at the time and place
appointed for such hearing, and shall make
such further examination and investigation
with respect to such person as shall seem
to said board necessary, and shall hear such
person in his defense if he appears and re-
quests a hearing.
Section 3. If, in the judgment of all
members of said board, after said examina-
tion and hearing, procreation by such person
would produce children with an inherited
tendency to crime-, insanity, feeble-minded-
ness, epilepsy, idiocy or imbecility, and if
there is no probability that the condition of
such person will improve to such an extent
as to render procreation by such person ad-
visable, or if, in the judgment of said board,
the physical or mental condition of such
person will be substantially improved
thereby, and said board shall unanimously so
find, said board shall order such an operation
to be performed on such person for the pre-
vention of procreation as shall be decided
by said board to be safe and most effective,
and shall appoint some member of said board
to perform such operation, who shall per-
form it.
Section 4. Such order shall be in writ-
ing, signed by all members of said board,
and shall bear the date of its issue, and shall
contain the name of the person upon whom
the operation is to be performed, the char-
acter of the operation and the name of the
member of the board who is designated to
perform it, and shall be filed by said board
in the office of the county clerk of the
county where such person resides.
Section 5. Before thus filing said order,
said board shall make a copy thereof and
deliver the same to the member of said board
designated to perform such operation; and
said order shall be his full warrant and
authority for performing such operation, and
no person performing an operation under
the provisions of this act, in a proper and
skillful manner, shall be held to account
therefor in any court. But no operation so
ordered shall be performed until fifteen days
after the filing of said order in the office of
the county clerk.
Section 6. Persons who shall come within
the provisions of this law as criminals, and
not otherwise, shall be those who have been
convicted of the crime of rape, or of such
succession of offenses against the criminal
law as, in the opinion of said board, shall be
deemed to be sufficient evidence of con-
firmed tendency.
Section 7. Said board shall keep a record
of its examinations, hearings and orders, and
in each case where an operation is per-
formed under its order said board shall file
with the superintendent or other administra-
tive officer of the institution where such
person is confined a copy of the record of
the examination made by said board in such
Legislative Records of the Sterilization Laws
45
case; and one year after the performance of
such operation said superintendent or other
administrative officer shall report to said
board the condition of such inmate and the
effect of such operation upon such inmate.
Section 8. This act shall not apply to
children under the age of puberty, nor to
women forty-five years of age and over.
Section 9. Except as authorized by this
act, a person who shall perform or assist in
performing an operation for the purpose of
destroying the power to procreate the human
species, or a person who shall knowingly
permit such operation to be performed upon
him, unless the same shall be a medical
necessity, shall be fined not more than one
thousand dollars or be imprisoned not more
than five years, or both.
Section 10. Whenever a person shall be
adjudged guilty of rape, or shall be a third
time convicted of felony, the court may, in
addition to such other sentence as may be
imposed, direct an operation to be per-
formed upon such person for the purpose
of preventing procreation, by a member of
the board of examiners of feeble-minded,
criminals and other defectives to be desig-
' nated by said court, and such member of
said board shall perform an operation for
such purpose, and the sentence and order of
the court shall be his full warrant and au-
thority therefor.
Section 11. The sum of one thousand
dollars is hereby annually appropriated to
carry out the provisions of this act.
Section 12. This act shall take effect from
its passage.
b. VETO.
The Vermont veto was based upon an
opinicm rendered by the Attorney-General,
Hon. R. E. Brown. The opinion follows:
Referring to Section 2 of this act, you will
notice that the act applies only to those of
the unfortunate classes named who are un-
fortunate to be actually confined "in the
hospitals for the insane, state prison, reform-
atories and charitable and penal institutions
in the state." Those equally unfortunate,
except in the matter of actual confinement,
including the criminals whose sentences have
been completed, and all having greater
opportunity to perpetuate the evil which this
bill seeks to guard against, are immune from
the operation of this act.
In my judgment, this is an unfair, unjust,
unwarrawted, and inexcusable discrimination
which iooght not to be, and cannot be toler-
ated under the supreme law, the Constitution
of this state.
If there be anything of merit in the claims
made by the advocates of this measure, and
I do not attempt to say there is not, just
why the feeble-minded or imbecile wife of a
kind-hearted and tolerant husband should be
permitted to give birth to offspring is quite
beyond my comprehension, and yet instances
of this kind are within the knowledge of
almost every person of mature years.
Instances of this kind are not confined to
cases of the imbecile wife, but the sugges-
tion applies equally to cases of. the degen-
erate and imbecile husband of the kind-
hearted and tolerant wife who has sufficient
means and sufficient pride to, in a measure,
conceal the actual condition of her husband.
In short, the idea meant to be conveyed
is, that this section contains such an un-
reasonable discrimination and classification
as renders the act void under the Constitu-
tion of this state.
Again referring to Section 9 of this act,
it is here provided that the act shall not
apply to women over forty-five years of age.
While it may be true that women "forty-five
years of age or over," as a general rule, do
not conceive and give birth to children, it is
an undisputed fact, well known not only to
the medical profession but in common expe-
rience, that women of that age do conceive
and give birth to children. Here, again, is
an unwarranted and inexcusable discrimina-
tion and classification which renders the act,
in my judgment, void under our Constitu-
tion.
In this connection permit me to say that
this discrimination would seem most un'
necessary and unwarranted because if it be
true, as the act assumes, that conception in
women of forty-five years or over is im-
possible, the execution of this law would
not deprive the individual of a God-given
power or function.
Again calling your attention to the pro-
visions in Section 2, which perhaps I may
be permitted to call the "machinery" for
carrying the provisions of this act into effect,
it seems apparent to me that these provisions
are wholly inadequate, unjust, and insuffi-
cient. In this connection it ought to be
sufficient to call attention to the fact that
this act applies to the insane and feeble-
minded confined in hospitals for insane and
charitable institutions of this state and that
the provisions for final hearing provide only
for notice in writing delivered to such insane
46
Legislative Records oe the Sterilization Laws
or feeble-minded persons, "which shall
plainly state time, place and purpose thereof,"
and in case the person is a minor or under
guardianship, a copy of such notice shall be
mailed to such parent or guardian, as the
case may be, addressed to his last known
residence at least six days before said hear-
ing. There is also the further provision that
the board provided for "shall hear such
person in his defense, if he appears and re-
quests such hearing. And at such hearing
such person shall have a right to introduce
witnesses and proofs and to be represented
by counsel. Said board shall give such
person a fair and impartial trial." Abso-
lutely no provision is made to enable such
insane person or persons confined in a char-
itable institution to appear before said board
and secure such impartial trial, and the fact
that such person is absolutely incapable of
making a request or of performing any legal
act, is utterly ignored. It is also provided
that upon such proof as may be adduced
said board may decide the question involved.
From their decision no appeal of any kind
is provided for. There is absolutely no pro-
vision regarding the quality of the evidence
which said board may receive. In other
words, under the provisions of this act, the
decision of the board is absolute and final.
In this respect an act of this kind is unheard
of and unwarranted. Under such a provision,
land could not be taken for a public high-
way, as has been repeatedly held by the
Supreme Court of this state, it is not due
process of law. Much less ought it to be
enacted that individuals may be deprived of
God-given powers, functions and rights in
such manner.
Perhaps I ought also to call your atten-
tion to Section 6 of this act. It is in this
section provided that "persons who shall
come within the provisions of this law as
criminals, and not otherwise, shall be those
who have been convicted of the crime of
rape or of such succession of offenses against
the criminal law as in the opinion of said
board shall be deemed to be sufficient evi-
dence of confirmed criminal tendency."
Under this section and the other provisions
of this act, it is in effect provided that this
board may inflict an additional penalty for
a crime long before committed and the legal
penalty of which has been already paid, and
perhaps upon a person who has been re-
formed by the payment of such penalty, as
the law presumes until further offense is
committed. It seems hardly necessary to
suggest that such a provision contravenes
the Constitution.
But the climax of absurdity and inconsist-
ency seems to have been reached in Section
7 of this measure. Under the provision of
this section both lunatic and imbecile- are
permitted to do that which has never been
permitted in any court of justice in this land,
viz., by agreement imposed upon themselves
such penalty as under this act may be im-
posed upon criminals after full hearing and
the introduction of evidence. To say that
such a provision is unwarranted and absurd
is putting it mildly.
Note: An unsuccessful attempt was made
to pass this bill over the Governor's veto.
4. NEBRASKA.
Senate Bill No. 132 — 33d Session.
Passed the House April 8, 1913 — 52 ayes,
33 noes; absent or non-voting, 15.
Passed the Senate — 28 yeas, 2 nays;
absent or non-voting, 3.
Vetoed by the Governor April 14, 1913.
a. TEXT OF BILL.
A BILL
For an act to prevent the procreation of^
certain classes of criminals and feeble-
minded and other defectives; to provide for
the appointment of a board of examiners by
the board of commissioners of public insti-
tutions, said board of examiners to consist
of two physicians and to fix their compensa-
tion, powers and duties; to provide for the
appointment of counsel for the person or
persons to be operated upon; to provide for
the keeping of a record of the proceedings
for such board of examiners and for an
appeal from the order of such board; and
to declare illegal all operations to prevent
procreation of the human species except as
authorized by this act, unless the same- shall
be a medical necessity, and declaring such
illegal operations a felony and fixing a
penalty therefor.
Be it enacted by the people of the State
of Nebraska:
Section 1. Immediately after this act has
gone into eflfect the board of commissioners
of state institutions shall appoint two physi-
cians, each with at least ten years' experi-
ence in the actual practice of his profession;
one for a term of two years and one for a
term of four years, to be known as the
board of examiners of criminals, feeble-
minded and other defectives, which board
is hereby created. The compensation of the
Legisi,ative Records of the Sterilization Laws
47-
members of such board shall be ten dollars
per diem for each day actually engaged in
the performance of the duties of the board,
and the actual and necessary traveling ex-
penses. Whenever the term of a member of
the board is about to expire said board of
commissioners shall appoint a physician for
the ensuing term. Any vacancies occurring
in said board shall be filled by appointment
by said board of commissioners for the un-
expired term. All appointments so made
shall be of physicians with at least ten years'
experience, as hereinbefore provided.
Section 3. It shall be the duty of the
board to examine into the mental and physi-
cal condition and record and family history
of the feeble-minded, epileptic, criminal, and
other defective inmates confined in the
several state hospitals for the insane, state
prisons, reformatories and charitable and
penal institutions, and those for the care of
defectives in the state, and if, in the judg-
ment of said board, procreation by any such
person would produce children with an
inherited tendency to crime, insanity, feeble-
mindedness, idiocy, or imbecility, and there
is no probability that the condition of any
such person so examined will improve to
such an extent as to render procreation by
any such person advisable, or if the physical
or mental condition of any such person will
be substantially improved thereby, then said
board shall appoint one of its members to
perform such operation for the prevention of
procreation as shall be decided by said board
to be most eflfective.
The criminals who shall come within the
operation of this law shall be those who
have been convicted of the crime of rape or
of such succession of oflfenses against the
criminal law as in the opinion of the board
shall be deemed to be sufficient evidence of
confirmed criminal tendencies.
Section 3. The board of examiners shall
apply to the District Court or any judge
thereof at chambers in the county in which
said person or persons to be examined is
confined, for the appointment of counsel to
represent such person or persons. Said
counsel shall act at the hearing before the
board of examiners and at any subsequent
proceeding therein, and no order made by
said board shall become effective until five
days after it shall have been filed with the
clerk of the District Court of said county,
and a copy shall ha-ve been served upon the
counsel appointed to represent the person
examined and proof of service of said copy
shall have been filed with the clerk of said
court. All orders made under the provisions
of this act shall be subject to review by the
District Court or any judge thereof at
chambers of the county in which the original
examination took place, and said court or
judge may upon the filing of such appeal
grant a stay which shall be effective until
such appeal shall have been decided. The
judge of the court appointing any counsel
under this act may fix the compensation to
be paid him. No physician performing an
operation under the provisions of this act
shall be held to account therefor. The
record taken upon the examination of every
such inmate signed by the said board of
examiners shall be preserved by the institu-
tion where said inmate is confined and one
year after the performance of the operation
the superintendent or other administrative
officer of the institution wherein such inmate
is confined shall report to the board of ex-
aminers the condition of the inmate and the
effect of such operation upon such inmate,
and a copy of the report shall be filed with
the record of the examination.
Section 4. Except as authorized by this
act, every person who shall perform, en-
courage, assist in, or otherwise permit the
performance of the operation for the purpose
of destroying the power to procreate the
human species or any person who shall
knowingly permit such operation to be per-
formed upon such person unless the same
shall be a medical necessity, shall be guilty
of a felony.
Section 5. Any person found guilty under
the terms of this act shall be confined in the
penitentiary not less than one year nor more
than five years, and shall, moreover, be
liable to the suit of the party injured.
b. VETO MESSAGE.
To Honorable S. R. McKelvie, Lieutenant
Governor and President of the Senate:
I herewith return, without my approval.
Senate File No. 133, an act entitled:
An act to prevent the procreation of cer-
tain classes of criminals and feeble-minded
and other defectives; to provide for the
appointment of a board of examiners by the
board of commissioners of public institu-
tions, said board of examiners to consist of
two physicians, and to fix their compensa-
tion, powers and duties; to provide for the
appointment of counsel for the person or
persons to be operated upon; to provide for
the keeping of a record of the proceedings
48
Legisi/ATive Records of the Sterilization Laws
of such board of examiners and for an ap-
peal from the order of such board; and to
declare illegal all operations to prevent pro-
creation of the human species except as
authorized by this act unless the same shall
be a medical necessity, and declaring such
illegal operations a felony, and fixing a
penalty therefor.
This act is so far reaching in its conse-
quences and so intimately related to the
social life of mankind, that legislative action
should not be' taken thoughtlessly or hur-
riedly. This proposed legislation is new and
practically untried; at best it is only- an
experiment and it seems more in keeping
with the pagan age than with the teachings
of Christianity. Man is more than aai
animal.
There is no urgent demand for the passage
of this kind of legislation. Mutilating the
human body, either as a punishment for
crime or as a preventive thereof, is drastic
in the extreme and there is grave doubt in
my mind if it does not violate Section 9,
Article I, of the Bill of Rights, which pro-
hibits cruel and unusual punishment. I
believe serious objections may be made to
it because of its violation of other provisions
of the Bill of Rights, and the act itself
appears out of harmony with Section 11,
Article III, of the Constitution, in that it
contains more than one subject.
There is no valid reason why this should
be made to apply to. wards of the state.
These wards are under the care and control
of superintendents appointed by the state,
the different sexes are segregated and the
danger sought to be obviated by this act, is
already well guarded against.
While I am heartily in favor of the pro-
visions of Section 4 of this act and would
be pleased to sign a law making it a felony
for any person to perform any operation for
the purpose of destroying the power to pro-
create the human species and making it a
felony for any person to permit such an
operation to be performed, still the other
provisions referred to above are such that
I must in conscience withhold my approval.
Respectfully submitted,
JOHN H. MOREHEAD,
Governor.
Executive Office, Lincoln, Nebraska, April
14, 1913.
Note: An attempt was made to pass this
bill over the Governor's veto.
Vote in House, 35 yeas, 53 nays; absent
or non-voting, 10.
Vote in Senate, 24 yeas, 7 nays; absent or
non-voting, 3.
5. IDAHO.
Fifteenth Session Idaho Legislature.
Senate Bill No. 150.
Introduced by T. R. Mason from Sho-
shone County.
Passed the Senate March 1, 1919—31 ayes,
1 nay; absent or non -voting, 9.
Passed the House of Representatives
March 6, 1919 — 56 ayes, 1 nay; absent or
non-voting 7; excused, none.
Vetoed by Governor D. R. Davis March
18, 1919.
a. TEXT OF BILL.
AN ACT to prevent the procreation of
feeble-minded, insane, epileptic, moral de-
generates and sexual perverts, who may be
inmates of institutions maintained by public
expense, by authorizing and providing for
the sterilization of persons with inferior
hereditary potentialities.
Be It Enacted by the Legislature of the
State of Idaho:
Section 1. It shall be, and it is hereby de-
clared, the duty of the medical superintend-
ents of the Idaho Insane Asylum, Idaho
State Sanitarium and Northern Idaho State
Sanitarium, to report quarterly to the De-
partment of Public Welfare, all feeble-
minded, insane, epileptic, moral degenerates
and sexual perverts, who are persons poten-
tial to producing offspring who, because of
inheritance of inferior or antisocial traits,
would probably become a social menace, or
a ward of the state.
Section 2. It shall be the duty of the De-
partment of Public Welfare to examine into
the innate traits, the mental and physical
conditions, the personal records, and the
family traits and histories of all persons so
reported so far as the same can be ascer-
tained, and for this purpose said department
shall have the power to summon witnesses,
and the commissioner of public welfare shall
have power to administer oaths to witnesses
whom it is desired to examine; and if in the
judgment of the commissioner procreation
by any such person would produce children
with an inherited tendency to feeble-minded-
ness, insanity, epilepsy or degeneracy, and
there is no probability that the condition
of such person so examined will improve to
such an extent as to render procreation by
Legisi/ATive Records of the Steriwzation L,aws
49
any such person advisable, or if the physical
or mental condition of any such person will
be substantially improved thereby, then it
shall be the duty of the department to make
an order directing the medical superintend-
ent of the institution in which the inmate is
confined to perform or cause to be per-
formed upon such inmate such a type of
sterilization as may be deemed best by the
commissioner.
Section 3. The purpose of said investiga-
tion, findings and orders of the department
shall be for the betterment of the physical,
mental, neural, or psychic condition of the
inmate, or to protect society from the menace
of procreation by said inmate, and not in
any manner as a punitive measure; and no
person shall be emasculated under the au-
thority of this act except that such operation
shall be found to be necessary to improve
the physical, mental, neural or psychic condi-
tion of the inmate.
Section 4. After fully inquiring into the
condition of each of such inmates the de-
partment shall make separate written find-
ings for each of the inmates whose condition
has been examined into, and the same shall
be preserved in the records of the depart-
ment, and a copy thereof shall be furnished
to the medical superintendent of the institu-
tion in which the inmate is confined, and if
an operation is deemed necessary by the de-
partment, then a copy of the order of the
department shall forthwith be served on said
inmate, or in case of an insane person upon
his legal guardian, and if such insane person
have no legal guardian, then upon his near-
est known kin within the state of Idaho, and
if such insane person have no known kin
within the state of Idaho, then upon the
custodian or guardian of such insane person.
Section 5. Any such inmate desiring to
appeal from the decision of the said depart-
ment, or in case the person is under guard-
ianship or disability, then the guardian of
said inmate may take an appeal to the Dis-
trict Court of the county in which the institu-
tion in which the inmate is confined is
located.
An informal notice of appeal filed with the
commissioner of the Department of Public
Welfare, either by the inmate or someone
in his behalf, shall be all that is necessary to
make the appeal; provided, that said notice
shall be filed within 15 days of the date when
notice of the department's decision is served
on the inmate or his guardian, and said
notice of appeal shall stay all proceedings of
said department in said matter until the same
is heard and determined on said appeal:
Provided, further, that no operation shall be
performed upon any inmate until the time
for appeal from the decision of the depart-
ment has expired.
Section 6. Upon an appeal being taken, the
commissioner must within 15 days thereafter
or such further time as the court or the
judge thereof may allow, transmit a certified
copy of the notice of appeal and transcript
of the proceedings, findings and order of the
department, to the clerk of the court ap-
pealed to.
The trial shall be a trial de novo at law
as provided by the statutes of the state for
the trial of actions at law. Upon such appeal,
if the inmate be without sufficient financial
means to employ an attorney, then the court
shall appoint an attorney to represent the
said inmate, and such attorney shall be com-
pensated by the state upon order of the
court; and it shall be the duty of the prose-
cuting attorney of the county wherein such
trial is had to represent the said department.
Section 7. If the court or jury shall affirm
the findings of said department, said court
shall enter a judgment, adjudging that the
order of the said department shall be carried
out as herein provided; if the court fail to
affirm the decision of said department ap-
pealed from, then said order shall be null
and void and of no further effect.
Section 8. Upon the receipt of the order
from the Department of Public Welfare
provided for in Section 2, the medical super-
intendent of the institution to which it is
directed shall, after the time for appeal has
expired, or in case of appeal upon the enter-
ing of a judgment affirming the order of the
department, and it is hereby made his lawful
duty to perform, or cause to be performed,
such surgical operation as may be specified
in the order of the Department of Public
Welfare. All such operations shall be per-
formed with a due regard for the physical
condition of the inmate and in a safe and
humane manner.
Section 9. Moral degenerates and sexual
perverts are those who are addicted to the
practice of sodomy or the crime against
nature, or to other gross, bestial and per-
verted sexual habits and practices prohibited
by statute.
Section 10. The provisions of this act
shall apply to both male and female inmates
of any of the institutions designated herein.
50
Legisivative Records of the Sterilization Laws
Section 11. The state shall be liable, under
this act, only for the actual and necessary
expense incident to the investigations of said
Department of Public Welfare and an appeal
therefrom.
b. VETO MESSAGE.
Robert O. Jones,
Secretary of State.
Sir:
I return herewith Senate Bill 150, passed
by the Fifteenth Session of the Idaho Legis-
lature. Meritorious as I believe the object
of the bill to be, I have determined to veto
it, because, after full investigation, I am con-
vinced that the bill will not accomplish that
object.
In terms, it seeks to prevent the procrea-
tion by sterilization of feeble-minded, insane,
epileptic, moral degenerates and sexual per-
verts, who may be inmates of institutions
maintained by public expense. It does not
apply to all persons in such classes, but only
to those confined in public institutions — the
persons in fact who by reason of such con-
finement are the least menace to society.
By reason of this discrimination, similar acts
have been held unconstitutional in other
states.
Laws providing for the sterilization of the
criminal and insane have been adopted in
some jurisdictions and while enforced in one
or two states, in most of them the law is
regarded as a dead letter. The scientific
premises upon which these laws are based
are still too much in the realm of controversy
and the results of the legislation still too
experimental to justify the proposed law as
wise legislation for this state.
Respectfully,
D. W. DAVIS,
Governor.
Office of the Chief Executive,
Boise, Idaho.
March 18, 1919.
Note : No attempt was made to pass this
bill over the Governor's veto.
CHAPTER IV.
STATISTICAL AND DESCRIPTIVE SUMMARY OF EUGENICAL
STERILIZATION IN THE SEVERAL STATES
I. Institutional Statistics and Official Reports and Opinions.
1. California 52
2. Connecticut 61
3. Indiana 63
4. Iowa 64
5. Kansas 69
6. Michigan 73
7. Nebraska 74
8. Nevada 79
9. New Jersey 80
10. New York 81
11. North Dakota 87
12. Oregon 88
13. South Dakota 90
14. Washington 91
15. Wisconsin 92
II. Summary.
A. Statistical Summary to January 1, 1921.
a. States and 'Institutions 96
b. Total Number of Eugenical Sterilization Operations in all fifteen
States ^ 96
1. By Sex 96
2. By Radicalness of Operation 96
3. By Classes 96
4. By States 96
5. By Time 96
B. Descriptive Summary , 97
52
Statisticai, Summary of Eugenicai, Sterii^ization
STATISTICAL AND DESCRIPTIVE SUMMARY OF EUGENICAL
STERILIZATION IN THE SEVERAL STATES.
I. INSTITUTIONAL STATISTICS AND mental effects, both immediate and remote,
OFFICIAL REPORTS AND o^ the operation on the patient.
OPINIONS ^^^ ^^^ '^^*' ^"^ admmistrative pro-
cedure followed in selecting cases for sterili-
The. existing eugenical sterilization laws zation and in carrying out the actual opera-
are limited in their application' to individuals tion.
who come into the custody of the state as (c) The changes, if any, in policy or
social inadequates of one type or another, practice in administering eugenical steriliza-
This chapter gives a complete statistical tion in the particular institution which have
statement of the actual eugenical sterilization taken place in the course of administering
operations effected under the law from the the law.
beginning of the legal authority for such (d) Suggestions concerning the improve-
work, up to January 1, 1921. tnent of the existing state statute in order
to make it more effective eugenically and
Besides this purely statistical summary the ^^^^ practical in administration,
responsible authority of every executive ^^^ The. judgment of the executive au-
board or commission and of each subject ^^^^.^^ .^ reference to the general policy of
mstitution was asked for a statement con- ,„g,„i,^i sterilization.
^' All of the replies to two such inquiries,
(a) The extent of case history and pedi- one made in 1918 and one in 1921, which
gree records maintained by the particular were received, are published in this chapter,
institution in reference to persons sterilized, regardless of the attitude of the particular
including notes on the physiological and writer toward the subject.
1. CALIFORNIA.
The statutes date from 1909 (second Eleven (11) state institutions are subject to
statute, 1913, third and fourth statutes, 1917). the act; they have performed eugenical
Present status (January 1, 1923): Active. sterilizing operations as follows:
MALES FEMAI.BS
Vasectomy Castration Salpingectomy Orailotomy Total
1. State Hospital, Stockton 572 0 222 34 828
2. State Hospital, Napa 16 0 159 0 175
3. State Hospital, Agnews 7 0 51 1 59
4. Mendocino State Hospital, Tal-
mage 27 0 14 0 41
5. Southern California State Hos-
pital, Patton 632 0 3T7 0 1,009
6. State Home, Sonoma 116 0 .183 3 302
7. vState Hospital, Norwalk 115 1 18 3* 137
8. Pacific Colony, Spadra ' To open March 1, 1921.
'.). Preston School of Industry,
Waterman 0 0 0 0 0
10. State Prison, San Quentin.... 7 0 0 0 7
11. State Prison, Folsom 0 0 0 0 0
Total to January 1, l!i:M . . . I, I!);;
• One hysterectomy.
Notes on the Enforcement of the Eugenical
Sterilization Law in California.
To California must be given the credit for
making the most use of her sterilization laws.
The history of the application of these stat-
utes shows an honest and competent effort
to improve "the racial qualities of future
generations." The work is well organized
1,024
41
2,558
and is proceeding as a regular detail of insti-
tutional administration.
California State Commission in Lunacy.
Dr. F. W. Hatch,
General Superintendent.
1. In the report for the two years ending
June 30, 1914 (pp. 13-14).
Statistical Summary of Eugenical Sterilization
53
ASEXUALIZATION.
"Without going into definite details it may-
be stated that we have continued our work
of sterilization and have done some 300 cases
since our last biennial report. The longer
we continue this work and the more study
we give to it, the more convinced we become
of its beneficial curative and preventive
tendencies.
"Those who keep in touch with insane work
must have become convinced of the increas-
ing number of defectives and departures
from normal among the fairly young people.
"The more acute maniacal forms seeni to
lessen, while those with disharmonies, with
ill formed delusions, with the various alco-
holic psychopathies, seem to increase.
"In our sterilization work we have followed
the same plan of obtaining the consent of
relatives, where they can be found, before
operating. Especially in women we are very
particular to obtain consent before under-
taking the more serious operation.
"There is on the part of some writers a
tendency to take it for granted that vasec-
tomy is negligible in its effects. Such a
conclusion is contrary to our experience, for
we find that many of our cases show a
marked clearing up a few weeks after opera-
tion. In several instances patients have
applied for vasectomy after consulting with
their fellows who have been operated upon
and have found benefit from it. In women,
who with every childbirth have a pronounced
mental upset, there can be no valid objection
to the work, or in those women who, while
still single, continue to bring into the world
children whose fathers are unknown, it would
seem the part of wisdom when they become
insane to cut off their reproductive ability.
"Sterilization may possibly prevent the de-
velopment of a future genius once in a while,
but so many who are defective or psycho-
pathic come into the world for lack of steril-
ization that it is hardly profitable to discuss
the question. The genius is a remote possi-
bility, the defective is a distinct probability.
Most of our cases have been between the
ages of twenty and thirty years of age;
quite a number are under twenty.
"Of the types of mental trouble manic de-
pressive forms are in the majority with de-
mentia praecox, epilepsy and alcoholic
psychosis next in order.
"When you come to discuss the number of
cures much latitude must be used. For
instance, I have before me an unselected
series of twenty-one cases, all women, in
whom there was 50 per cent of restorations.
In some of these cases the operation was
done after decided improvement and prelimi-
nary to their discharge after consultation
with their relatives as to the advisability of
the operation.
"Study of the individual case and his or her
potentiality for reproducing defectives is
necessary and should be given."
2. In the report for the two years ending
June 30, 1916 (pp. 15-16).
STERILIZATION.
"The sterilization law and the prevention
of insanity work is proceeding at all of the
state hospitals and at the Sonoma State
Home. During the two years ending June
30th last 391 sterilizations were done — 161
men and 130 women. Those operated upon
were classified under the following forms of
mental disease, viz:
Manic depressive 149
Dementia praecox 68
Epileptic 87
Imbecility 14
Drugs and alcohol 19
Other forms 14
391
The operation on women is almost uni-
formly a salpingectomy, except where there'
is organic trouble of the ovaries when one
or both may be removed. Ovariotomy is
occasionally done in hysteria or epilepsy
with marked erotic tendencies. In the men
vasectomy is the one operation, as the law
does not permit us to castrate. We seldom
operate upon a woman without getting the
consent of her nearest relative, and that
people are beginning to realize the advis-
ability of cutting off the power of bringing
children into the world by those who have
become insane through inherited weaknesses
is shown by the readiness with which they
ordinarily give consent when the operation
and its purposes are explained to them. It
is not uncommon for the hospitals to have
requests from patients or former patients to
have sterilization done upon them. Many
of our female patients who have been steril-
ized at the hospitals have expressed their
appreciation of the work done upon them by
reason of their knowledge of danger of bad
inheritance in child-bearing. Among the
men where there are relatives who can be
found we try to obtain consent — if relatives
can not be found we decide upon the work
according to the history of the case, its class
54
Statistical Summary of Eugenical Sterilization
and the general character of the individual.
While the results following vasectomy are
by some considered negligible, it is beyond
a question of doubt in many cases that there
is a marked improvement both mentally and
physically within thirty days after the opera-
tion, which persits until the patient is in
condition to be discharged. No ill effects
have followed either salpingectomy or vasec-
tomy upon the physiological functions. That
sterilization in appropriate cases should be
done is undoubted. The influence of hered-
ity, the engrafting of the weaknesses of
parents upon children, perhaps in modified
form, is so well established that there is no
room for argument. An answer might be
made that those where sterilization seemed
urgent should never be discharged from the
hospital but should be kept there through
life; but it is easy to realize what the result
would be. We would be overcrowded with
the class of cases who are unfit to bring
children into the world. A majority of the
public would be maintaining a minority of
the unfit by reason of their possession of
procreative powers. Sterilization prevents
the transmission of their weaknesses to chil-
dren, the public is protected, and the steril-
ized individual can be a breadwinner but not
a producer of his kind."
Miss Ethel H. Thayer, Eugenics Field
Worker: "The work done in each state hos-
pital depends upon the interest of the re-
spective staffs. The largest number of
operations has been performed at Patton
and at Stockton, I believe. I know that the
work is being carried on right along at Pat-
ton. The woman physician there told me
that one of the most encouraging phases of
the work is the ease with which they secured
the consent of relatives and the cooperation
of the priests to whom relatives go for
advice in the matter. There seems to have
been some misunderstanding about the
application of the law to the feeble-minded,
and operations at the Sonoma State Home
have been held up for the time being. I will
ask Dr. Hatch to explain this matter more
fully.
"I spoke to Dr. Hatch about the investiga-
tion of the family histories of cases proposed
for sterilization, and he intends to give me
some such cases for study. A history that I
am getting at present seems to be increasing
the desire and efforts of Dr. Stocking and
Judge Beasly of San Jose to secure the
sterilization of two unfit individuals who are
now at large and raising a family only to
become county charges.
"If each hospital could have a permanent
field worker, this would be an important
phase of the work. Dr. Reily has this in
mind, I believe, in wishing to establish the
work at Patton." March 12, 1915.
Sample Letters used in Authorizing
Eugenical Sterilizatioti in California by the
General Superintendent of State Hospitals
and the Secretary of the State Board of
Health:
1. Stockton State Hospital.
Stockton, California, April 26, 1921.
In re MALE.
Dr. F. W. Hatch,
Gen'l Supt. State Hospital,
Sacramento, California.
Dear Doctor:
MALE, admitted April 14, 1921; native
Spain; age 26; white; male; from Kern
County. Is afflicted with hallucinations that
he is about to be submerged in water by
friends — runs away with no particular aim
in view; fights and threatens to fight; saw
hell fire.
Diagnosis: ALCOHOLIC PSYCHOSIS:
ACUTE HALLUCINOSIS.
We think this man should be operated on
for. sterilization as he would likely transmit
to descendants.
Yours truly,
FRED P. CLARK,
Medical Superintendent,
APPROVED, and authorization granted
for sterilization on this 2d day of April, 1921.
F. W. HATCH,
General Supt., State Hospitals.
WM. DICKIE,
Secretary State Board of Health.
2. Napa State Hospital.
Napa, California, April 13, 1921.
Dr. F. W. Hatch,
Gen'l Supt. of State Hospitals,
Sacramento, California.
RE: BERTIE S. PRUPTTE.
Dear Doctor:
We are writing to you for permission to
discharge the above patient May 18, 1921,
after a year's treatment in this Hospital.
She was committed for two years under the
Narcotic Act, but has cooperated so cheer-
fully in her treatment and has shown such
satisfactory progress that we feel little more
can be accomplished by detaining her longer.
Yours truly,
A. C. MATTHEWS,
Medical Superintendent.
Statistical Summary of Eug^nical Sterilization
55
Approved and authorization for discharge
granted this 17th day of April, 1931.
F. W. HATCH,
General Supt., State Hospitals.
WM. DICKIE,
Secretary State Board of Health.
3. Agnew State Hospital.
Agnew, California, April 9, 1931.
Dr. F. W. Hatch,
Gen'l Supt., State Hospitals,
Sacramento, Calif.
Dear Doctor:
FEMALE; self-committed No. 443;
from Alameda County, January 33, 1921;
white; native of Kansas; female; age 33
when committed; married; housewife by
occupation; diagnosis: manic-depressive.
One previous attack. Admitted June 8,
1918; discharged June 18, 1930. Present
attack began two months ago; sudden in
onset. Bodily condition fair. No injuries;
no epilepsy; depressed. Suddenly became
very much confused. No liquor, tobacco,
drugs. Cause of insanity unknown.
After leaving the hospital the last time
she became pregnant and had another child.
Soon after this she had to be recommitted
to the hospital, and I think further pregnan-
cies would be a decided hindrance for her
remaining stable when she again goes home.
Yours truly,
LEONARD STOCKING,
Medical Superintendent.
APPROVED and authority for operation
of sterilization granted this 13th day of
April, 1921.
F. W. HATCH,
General Supt., State Hospitals.
WM. DICKIE,
Secretary State Board of Health.
4. Mendocino State Hospital.
Talmage, Calif., April 13, 1931.
Dr. F. W. Hatch,
Gen'l Supt. State Hospitals,
Sacramento, California.
FEMALE.
Dear Dr. Hatch:
Will you kindly grant us permission to
sterilize this lady.
She has no relatives to whom we can
apply. She is an;xious to have this opera-
tion performed for the reason that she has
had two attacks of mental trouble follow-
ing pregnancies and wishes to prevent any
future attacks.
Very truly yours,
ROBERT LEWIS RICHARDS,
Medical Superintendent.
APPROVED, and authorization for the
operation of sterilization granted this 14th
day of April, 1931.
F. W. HATCH,
General Supt., State Hospitals.
WM. DICKIE,
Secretary State Board of Health.
5. Southern California State Hospital.
Patton, San Bernardino County, Calif.,
April 6, 1931.
Dr. F. W. Hatch, Gen'l Supt.,
Sacramento, California.
Dear Doctor:
No. 13313; female; white; married; age
18 years; housewife by occupation. Com-
mitted November 37, 1920. Diagnosis:
Manic Depressive (a.)
According to the commitment papers this
patient was in the Psychopathic Ward, City
Hospital, in St. Louis, Missouri, in 1916.
Also that she threatened to do harm to
herself and to her infant child; that her
mental symptoms began at the time of the
birth of her child. Patient had a maternal
aunt who was insane.
As we believe this patient is afflicted with
a mental disease which may have been
inherited and is likely to become transmitted
to descendants, we would like instructions
to perform the operation of sterilization.
Patient's husband asked that this operation,
be performed and we have his written con-
sent.
Yours very truly,
JOHN A. REILY,
Medical Superintendent.
By order of the State Commission in
Lunacy you are hereby instructed to pro-
ceed with the operation of sterilization upon
the above named patient, this 8th day of
April, 1931.
F. W. HATCH,
General Supt., State Hospitals.
WM. DICKIE,
Secretary State Board of Health.
6. Sonoma State Home.
Eldridge, California, April 19, 1931.
Dr. F. W. Hatch,
Gen'l Supt. State Hospitals,
Sacramento, California.
Dear Doctor:
56
Statistical, Summary of Eugenical Sterilization
May we have your permission for the
operation of sterilization on the following
case?
REGISTER NO. 3531; FEMALE; ad-
mitted April 9, 1921. Age 34 years. Moron.
This girl's parents are dead. She is par-
alyzed on right side. Gave birth to an
illegitimate child just previous to her admis-
sion here. She gave written consent for the
operation April 1, 1931, and we also have
consent of her grandfather, dated April 30,
Very truly yours,
F. O. BUTLER,
Medical Superintendent.
APPROVED, and permission granted
this 37th day of April, 1931, for the operation
of sterilization.
F. W. HATCH,
General Supt., State Hospitals.
WM. DICKIE,
Secretary State Board of Health.
7. Norwalk State Hospital.
Norwalk, California, April 26, 1931.
Dr. F. W. Hatch,
Gen'l Supt. State Hospitals,
Sacramento, California.
Re: FEMALE STERILIZATION.
Dear Doctor:
The above named patient was admitted
to the Norwalk State Hospital from Los
Angeles County, February 24, 1931.
Diagnosis: Dementia Praecox.
She was born in California twenty-eight
years ago, and her mental derangement was
first noticed in 1914, since that time she has
been cared for at different sanitariums and
at home.
From the fact that she may recover from
this attack and be well enough to go home
at some future date, we are asking permis-
sion to sterilize her. We have the signed
permission of her mother for this operation.
Awaiting your reply in this matter, I am,
Yours very truly,
C. F. APPLEGATE,
Medical Superintendent.
APPROVED, and authorization granted
to perform this operation this 29th day of
April, 1921.
F. W. HATCH,
General Supt., State Hospitals.
WM. DICKIE,
Secretary State Board of Health.
Reports by Institution
In response to inquiries, the following
information and opinions were given;
1. Stockton State Hospital, Stockton. Dr.
Fred P. Clarke, Superintendent.
(a) From Report to State Commission
in Lunacy, March, 1916 (pp. 52-53).
"Sterilizations. The results in our surgi-
cal and hydrotherapy departments have been
very gratifying the past year. We have con-
tinued our work of sterilizing all patients
under 45 or 50 years of age committed to the
hospital. Among the women only those
who have recovered, or improved to such
an extent that they are able to leave the
hospital, are sterilized. All the young and
middle-aged men are sterilized, unless they
are suflfering from paresis, or some other
form of dementia.
"The operations for both vasectomy and
tubectomy are comparatively simple, requir-
ing but a short time to perform. The vasec-
tomies are done in four or five minutes under
local anaesthesia; the tubectomies, when
there are no complications, in less than
fifteen minutes.
"Vasectomies are performed in the scro-
tum, the vas being picked up by the thumb
and forefinger and rolled away from thf
tissues of the cord and fixed to the skin by
tenaculum forceps. An incision is made
1 cm in length through the skin and sheath.
The vas is drawn out and a section 1 cm
in length is taken out. There is no bleeding
and no sutures are needed except for the
incision in the skin which is closed with ont
stitch. By this interruption in the continuit>
of the vas, the testicular secretion is ab-
sorbed. Since performing -these operations
we are led to believe, by the improvement
in general and mental health, that there is a
distinct beneficial result from the absorption
of the testicular secretion.
"The first attempts to consciously utilize
the internal secretion of the testicles wer<
made, as is well known, by Brown-Sequard.
who experimented with testicular extracts in
1889. He reported a remarkable result from
the subcutaneous injection of testicular ex-
tracts. They were said to increase bodilj
and mental vigor, etc. Many of the results
claimed were evidently due to suggestion
However, since beginning these sterilization
operations, we are led to believe that by tht
improvement in mental and general health
that there is a definite beneficial effect from
this operation and may lead to important
findings as an organo therajjeutic agent.
"The cases suflfering from depression, in-
abilitv to concentrate and extreme nervous-
Statisticai, Summary oi? Eugenicai, STERir,izATioN
57
ness are those who are principally benefited.
Men who responded to no other form of
treatment, in from two to three weeks after
the operation have shown marked improve-
ment both mentally and physically and later
have been discharged from the hospital in
their normal mental condition and in ex-
cellent physical health. The women are
benefited only by the fact that they are pro-
tected from the recurrence of their mental
trouble through the nervous strain incidental
to child-bearing and also the worry that
they might again become pregnant, which
would more than likely mean their return
to the hospital, perhaps to make it their
permanent home. The most important fea-
ture in these cases is that the state will not
have their children, their grandchildren or
their great-grandchildren to care for.
"For the tubectomy, an incision is made
low down in the medium line of the abdomen
so that the slight scar left is covered with
pubic hair and is not noticed by the patient.
The incision is made only large enough to
insert the first and second fingers. The
tube is then withdrawn by the fingers, a
small incision is made in the isthmus (or re-
stricted portion) of the tube, and 1 or 2
cm of the tube is resected. The serous
covering is then sutured over with fine
catgut, the tube dropped back in the abdomi-
nal cavity and the external incision closed.
Patients are able to be up within three or
four days after the operation. Should any
pelvic disease be found present, the incision
is lengthened and the condition remedied at
the time of the operation.
"To my mind California — through the
enactment of this law, and seeing that its
provisions are carried out — is leading the
world in providing that the patients com-
mitted to her various state institutions are
receiving the benefits of sterilization — not
alone for its curative eflfects — but to prevent
thg filling of her institutions in the future,
from the offsprings of the insane who re-
cover or partially recover and are permitted'
to again go out into the world and reproduce
' their like — a large percentage of whom
' through inheritance and under unfavorable
environments or dissipation, at length take
'* the places of their ancestors in the institu-
te tions for the insane throughout the state.
"If the insane who are capable of reproduc-
ing are not sterilized before leaving the hos-
'■ pital, it naturally follows that we will have
an ever-increasing, endless chain of insane
and defective wards to care for.
"I made the rather broad statement that
California was leading the world in this very
important procedure. In doing so I am well
aware there are several other states in which
this operation is authorized, but from sta-
tistics which I have been able to gather, 1
feel that we, in this state, are doing more of
this work than is being done elsewhere.
"I would like to see the law made broader
whereby those addicted to the use of alcohol
or drugs could be sterilized upon their sec-
ond commitment to an insane hospital."
(b) (Quoted from letter.) "In most
cases I have had the consent of the relatives
before operating, but this is not necessary.
We have had decided beneficial results from
the operation on our men patients, and many
of them recover after the operation, who
had shown no previous improvement under
other forms of treatment. This is especially
true in nervous cases, and the depressed type
of manic depressive insanity. I consider the
sterilization act the most important law
which has been placed on the statute books
as a eugenical measure. I think this law
should be broadened so that alcoholics and
drug habitues could be sterilized upon the
second admission to a state hospital."
January, 1918.
(c) Report to State Commission in Luna-
cy, June, 1918 (p. 41).
Sterilization and Other Surgery.
"During the past year, as in former years,
we have continued to sterilize our men and
women patients — under 50 years of age —
who have prospects of leaving the hospital,
and as stated in my former report, we have
found this operation very beneficial in a
great number of our men patients who have
responded to no other forms of treatment."
(d) (Quoted from letter.) "I think the
policy of eugenical sterilization is a very
praiseworthy one, and feel that it should be
more strictly enforced, not only for the pre-
vention of the production of undesirables
but for the benefit of the patients themselves.
"I would suggest that drug and inebriety
cases be sterilized on their second admission
to the hospital.
"Our policy is to select certain men under
forty-five and women of child-bearing age
for sterilization. After obtaining the per-
mission of the General Superintendent of
5S
^TATisTiCAiv Summary of Eugbnical Sterilization
State Hospitals and of the Secretary of
State Board of Health in reference to these
selected cases, we perform the operation.
"We nofe the mental condition of patients
sterilized as long as they remain in the hos-
pital and receive reports from relatives and
friends monthly from those who leave the
hospital on parole. We have, however, prac-
tically no reports from those who are
discharged." April 4, 1921.
'i. Napa State Hospital, Napa.
A. C. Matth'ews, Medical Superintendent.
"There are no special physiological or mental
eflfects, either immediate or remote, follow-
ing sterilizations. We do not perform
castration or ovariotomy for sterilization as
we do not believe in the principle.
"We do not operate without obtaining
first, the consent of the relatives. The cases
for sterilization are carefully selected, pick-
ing out those from which there is danger of
transmitting the nervous instability to off-
spring.
"Inasmuch as the State Sterilization Law
has been declared unconstitutional in the
States of New Jersey and New York, and I
believe, also in Michigan, we do not care to
have a test case brought into the Supreme
Court of this State, fearing that a like action
would be taken. This accounts for the rea-
son that we do not sterilize any cases without
first receiving the consent of the relatives.
"In the Eastern States, the law was de-
clared unconstitutional as it was declared
'class legislation,' inasmuch as it applied
only to that particular class of mental cases
that were confined in the State Institutions
and did not include the same class of cases
outside of institutions. If a law could be
so framed, and the work of such a law
satisfactorily carried out as applying to
mental cases, both in and out of an institu-
tion, I do not think that it would be
declared unconstitutional.
"I certainly approve of the .sterilization
law. I feel that the movement in this di-
rection has received a serious setback in
declaring the law uiiconstitution;.! in some
of our Easterri Slates." Jani';,r>, 1921.
3. Agnew State Hospital, Agnew. Dr.
Leonard Stocking, Medical . Superintendent.
(Quoted from letter.) "The sterilization
law is working very satisfactorily, and with-
out friction or objection. We almost in-
variably obtain the consent of the most
interested relatives, or the patient, or of
both. The operation is performed whenever
in our judgment it is advisable. In my opin-
ion it is of very little medical value. However,
in a number of cases in performing the oper-
ation for sterilization we have found
conditions necessitating more extensive oper-
ation for the good of the patient, such as
removing appendix, ovary, etc. Unquestion-
ably the statute is of great eugenica' value "
January, 1918.
4. Mendocino State Hospital, Talmage.
John Lewis Richard, Medical Superin-
tendent. "This hospital has accurate records
of the mental condition of patients sterilized
since 1910. Cases which have pronounced
history of hereditary feeble-mindedness or
hypersexuality are selected for sterilization.
Under the present law they are recommended
by the Medical Superintendent for operation
and permission of the State Commission in
Lunacy must be secured.
"Some measure should be taken for legal
protection of those authorized to perform
this operation. We believe that eugenical
sterilization is a desirable measure.'' Janu-
ary, 1921.
5. Southern California State Hospital, Pat-
ton. Dr. John A. Reily, Medical Super-
intendent.
(a) (Quoted from letter.) "Except in
case of moral delinquency, we have secured
the consent of the nearest relative. We have
reason to believe that some physical and
mental benefit is derived from the operation,
and, as a means of improving the human
stock, sterilization of the defective and de-
linquent must, of necessity, be of great value.
"Just now we are extremely busy in ap-
plying the principles of eugenics, having
sterilized in this institution alone during the
month of March approximately 43 cases.
Other institutions of California are doing
similar wOrk. As a matter of fact, this state
is accomplishing more at this time than all
of the rest of the United States combined.
"I regretted to learn recently that <he
Wisconsin law was declared unconstitutional.
Sooner or later we will have to come to a
uniform law which will stand the test of the
courts and oblige all cases leaving institu-
tions of this kind to be sterilized. Cer-
tainly, when we stop to consider the great
sacrifices now being made in Europe — the
sacrifice of stalwart manhood in the various
nations at war — the sacrifice of the privilege
of parenthood in those mentally defective
dwindles into insignificance.
Statistical Summary of Eugenical Sterilization
59
"Let us hope that the proper application of
sterilization, together with other principles
of eugenics, will so improve the human
stock that wars will be less likely in the
future." April, 1918.
(b) (Quoted from letter.) "We obtain
as far as possible the complete personal and
family history from the patient and relatives
and there is also a careful record kept of the
patient's men.tal and physical condition
before and after the operation. In most
cases the consent of the relative is obtained,
then a summary of the case is forwarded to
the General Superintendent and his consent
and the consent of the Secretary of the State
Board of Health is obtained. After receiv-
ing this consent we proceed with the opera-
tion. The cases selected are those who are
likely to leave the institution, and cases of
women where there is a possibility of their
becoming pregnant.
"During the past few months we have done
very little sterilization in this institution and
throughout the hospitals of California much
less of this work has been done. The reason
for this is that wherever a sterilization law
has come before the courts in other states
it has regularly been declared unconstitu-
tional, and while our law seems to be a good
one, it would possibly meet the same fate
should it come before the courts.
"If our law should be declared unconstitu-
tional it would leave us subject to the whims
of those who have been sterilized and prob-
ably result in court action for damages iij a
number of instances. I feel, therefore, that
any law should be thoroughly tested by the
courts before the Superintendents of State
Hospitals should be required or expected to
operate under a sterilization law and that
such protection should be given to the heads
of hospitals that there would be no chance
of their families becoming pauperized
through damage suits resulting from this
work.
"Undoubtedly California has accomplished
more along this line than any other State
and perhaps more than all other States;
however, it seems quite unjust that she
should stand very largely alone in this pro-
gressive effort. Certainly a court proof law
should be devised, passed and put into oper-
ation in every State because, in my judg-
ment, this is our only avenue of escape
from the dreadful avalanche of defectives,
delinquents and criminals which threatens
our social foundations. If you can devise
a method of procedure in the matter of
sterilizations which would result in a uni-
versal application of this practice you would
have accomplished more toward sustaining
the mental stability of the human race than
may be accomplished by any other means."
January, 1921.
6. The Sonoma State Home, Sonoma. Dr.
Wm. J. G. Dawson, Superintendent.
(a) In answer to the inquiry: What,
in your opinion, is the medical value of the
statute? Dr. Dawson stated, "Some cases
have shown physical improvement and are
not so restless." He also expresses the
opinion that "sex sterility would be liable
to produce increased prostitution."
March, 1918.
(b) Dr. F. O. Butler, Medical Superin-
tendent, July, 1918. Report to State Com-
mission in Lunacy, July, 1918 (p. 77).
"Surgical work has been carried on in
good order. During the last few months of
the biennial period sterilization of chosen
cases (particularly the moral delinquent
feeble-minded type) has been started and we
expect to continue this work. We find steri-
lization makes the patient more amenable to
discipline and less restless."
In the list of operations performed, nine
sterilization operations were reported.
(c) In the Twelfth Biennial Report of
the State Commission in Lunacy, June 30,
1920, F. O. Butler, Medical Superintendent,
reports having performed two hundred and
twenty eugenical sterilizations during the
biennium, of which he says: "Sterilization
has been continued, but only in cases where
there are no relatives or we have absolute
consent and approval of responsible rela-
tives. I am delighted to say that we are
having very little difficulty in obtaining this
consent. I think sterilization of a certain
class of our inmates is most important;
aside from the training and discipline
obtained while here, the operation for steril-
ization renders them unable to propagate
their kind; therefore, many of them are
able to go on parole or be discharged and
make their way in the world. This relieves
the state and counties of the expense for
their support as well as making them happy
in the thought of being self-supporting. This
procedure naturally makes more room in
the institution for that class not able to cope
with outside conditions, and relieves the
relatives and various organizations of this
burden."
60
Statistical Summary of Eugenical Stbriuzation
(d) (Quoted from letter from Dr. F. O.
Butler, Superintendent.) "In our steriliza-
tion cases psychological examinations are
made before and after the operation. Physi-
ological tabulations are made about every
six months.
"We select for sterilization (a) all cases
in definitely feeble-minded class of child-
bearing age who may leave the institution,
especially of higher mentality and immor-
ality history, (b) border-line defectives or
subnormals with a bad immoral or heredi-
tary history who were committed here as
feeble-minded. We then obtain the consent
of a responsible relative and legal authority
from the State Commission in Lunacy. It
is our policy not to perform the operation
until the inmate has been in the institution
for at least one month.
"I have no further suggestion in the
matter of practical administration but would
think it possible to have the law so changed
that it could not be declared unconstitutional
as has been done in other states.
"Eugenical sterilization should be carried
on in this and other states in the Union to
the very fullest extent. I think it one of
the greatest steps that have been taken
along the eugenical line and I sincerely trust
that the law will always allow us to per-
form such operations." January, 1921.
7. Norwalk State Hospital, Norwalk. Dr.
W. B. Kern, Medical Superintendent.
(a) (Quoted from letter.) "The rule is
to acquire the written consent or approval
of parent or guardian, following which the
approval of the State Board of Health is
obtained. The statute is of great value in
helping to lessen bad heredity." February,
1918.
(b) C. F. Applegate, Medical Superin-
tendent, 1931. (Quoted from letter.) "A
report is kept of the improvement of the
mental and physical condition of all cases
of sterilization. Most of our cases are in
young people who are about to leave the
institution.
"Our procedure is as follows: First, we
secure the consent of the relatives, and
second, the consent of the State Lunacy
Commission.
"We are firm believers in sterilization in
this institution and since the question some-
times arises as to whether the matter of
sterilization is legal we would suggest that
proper means be taken to secure its legality."
January, 1921.
8. Pacific Colony, Spadra. Dr. Fred C.
Nelles, Superintendent of the Whittier
State School at Whittier, reports:
"Our institution is not one of those which
will come under the sterilization law. We
were in a position, however, to assist in
securing the passage of an act at the last
session of the Legislature, creating the Pa-
cific Colony. A provision in this act makes
sterilization possible. (See p. ,19.)
"So far as we know, the sterilization sec-
tion of the Pa-cific Colony law is the first
to recognize the importance of the clinical
psychologist in this matter. This provision
is eugenic and preventive, rather than aiming
at the benefit to the individual, thus differing
from some state laws.
"The importance of scientific research is
recognized in the establishing act of the
Pacific Colony.
"Possibly segregation in the long run
would work to better practical advantage
than wholesale sterilization.
■I* * * j„ ji^g j^^ j^g jt applies to
Sonoma, the action is taken by the State
Commission in Lunacy, while with the Pa-
cific Colony it is taken on recommendation
to the Trustees by the Superintendent,
approved by a clinical psychologist and an
M. D. qualified to serve under Section 19
of the Pacific Colony Act." February, 1918.
9. Preston School of Industry, Waterman.
Dr. C. A. Robinson, Attending Physician.
(Quoted from letter.) "We have had but
one operation in three and a half years, but
this one case was very satisfactory in pre-
venting masturbation."
Dr. Robinson states, however, that in his
opinion, sterilization, as a general thing, is
only of slight value from a medical point
of view; but from a eugenical point of view
"it is very good in the insane and chronic
criminals." January, 1918.
10. California State Prison, San Quentin.
Mr. J. A. Johnston, Warden,
(a) (Quoted from letter.) "I desire to
say that while there are many operations
performed in this state in the state hospitals
for the insane, there are very, very few
operations in the prison. The law permits
and provides for the operations in the state
hospitals under certain conditions, but pro-
vides additional conditions to that part of
the law applying to inmates of the state
prisons. As a matter of fact it is extremely
rare that we would have a case for opera-
tion under the provisions of the law. We
Statisticai, Summary of Eugenical Sterilization
61
perform on the average about one operation
a year, and all that we have had in the past
five years have been made at the inmates'
requests." February, 1918.
(b) L. L. Stanley, Resident Physician,
says: "The California Law is such that it
is inopportune. Only a few cases of volun-
tary sterilization have been done. We feel
that sterilization is admissible in confirmed
criminals and feeble-minded persons."
January, 1921.
11. State Prison, Folsom. Mr. J. J.
Smith, Warden.
(a) (Quoted from letter.) "I beg (to
advise that the Surgical Sterilization Law of
this State applies to this institution, but it
The statute dates from 1909.
status (January 1, 1922): Theoretically
active, but practically a dead letter, however,
the recent extension of the statute to the
Mansfield State Training School and Hos-
has not been practiced up to date. There
have been no operations performed upon
any of the inmates of this institution, either
under this law or for any other reasons,
that have resulted in sexual sterilization.
One reason for this is, that all prisoners who
would be eligible for such an operation are
always transferred to one of the State Hos-
pitals for the Insane for observation and
treatment. As to what operations are per-
formed upon them there, I am unable to
know." February, 1918.
(b) H. A. Clattenburg, Resident Physi-
cian. (Quoted from letter.) "Eugenical
sterilization is all right under proper super-
vision. We wish we knew more about the
statute on the subject." February, 1931.
2. CONNECTICUT.
Present pital indicates the intention of activity.
Four (4) state institutions are subject to the
act. They have performed eugenical sterili-
zation operations as follows:
Vasectomy
1. State Pri.son, Wethersfield. . . . 0
3. State Hospital, Middletown. . . 0
3. State Hospital, Norwich 5
4. Mansfield State Training School
and Hospital, Mansfield Depot 0
;s
Castration
0
FEMALES
Salpingectomy Ovariotomy
0 0
Total
" 0
0
0 0
0
0
13 10
37
Total to January 1, 1931... 5
Notes on the Enforcement of the Eugenical
Sterilization Law in Connecticut.
Action in this state has been conservative.
It must be looked upon as the sound foun-
dation for future growth.
In response to inquiries the following
information and opinions were given:
1. Cormecticut State Prison, Wethersfield.
Mr. Charles C. McClaughry, Warden,
(a) (Quoted from letter.) "I understand
that the opinion of a lawyer, Mr. Arthur
C. Graves, of 48 Church street. New Haven,
as given to Colonel N. G. Osborn in the
following words, was the reason for the
Board of directors not attempting the
enforcement of the law:
" 'I am firmly convinced in my own
mind that the law is unconstitutional, as
being an infringement of that clause of
every state's constitution and of the fed-
eral constitution, which says "nor shall
any cruel or unusual punishment be in-
flicted." I should think that it is an
infringement of the right to life and liberty
and I understand that the case decided in
the Supreme Court of the United States —
0 13 10 37
U. S. vs. Weems — in one of the recent
volumes (but I cannot say which) holds
to this same opinion.' " February, 1918.
(b) Quoted from Henry K. W. Scott,
Warden: "Following the passage of Chap-
ter 209 of the Public Acts of 1909 (Connecti-
cut General Assembly), the Board of
Directors of this prison appointed as a com-
mission for the prevention of procreation,
Drs. E. G. Fox of Wethersfield, E. J. Mc-
Knight, of Hartford, and William H.
Carmalt, of New Haven. This commission
met here at the prison on May 31, 1910,
and examined the family and criminal his-
tory and mental condition of some three
inmates. This was the only meeting of this
commission, and to our knowledge, no oper-
ations have been performed at this institution
Under the provisions of this law.'' February,
1931.
2. Connecticut State Hospital for the In-
sane, Middletown. Dr. C. Floyd Havi-
land. Superintendent.
(a) (Quoted from letter.) "Considerable
doubt exists as to the constitutionality of
62
SiCATisTiCAL Summary of Eugenical Sterilization
the law, and there is a strong antipathy
against it. As the results of such laws appear
problematical, it has never been taken
advantage of in this institution. As to the
medical value of the statute, I have had no
personal experience, but am skeptical except
in exceptional cases. Its eugenical value is
limited. Such laws fail to take into account
the large number of individuals capable of
transmitting neurotic and psychoneurotic
traits without themselves showing such
manifestations." January, 1918.
(b) (Quoted from letter.) "As yef this
hospital has done no work in the steriliza-
tion of patients. We now have a case under
consideration in which we have obtained the
consent of the family for such an operation,
and which we propose to perform. While
we are not under legal obligations to obtain
the consent of the nearest relative, such
practice is followed as a matter of policy.
"The present sterilization board of the
hospital is composed of Dr. R. L. Leak,
Assistant Superintendent, Dr. Henry M.
Chandler, Senior Assistant Physician, and
myself.
"Local public opinion is adverse to eugen-
ical sterilization. In a large part this adver-
sion seems to be of religious origin, thus
the present statute is in advance of public
opinion.
"The possibility of increased dissemina-
tion of venereal disease following eugenical
sterilization must be considered in connec-
tion with the theoretical benefits of the
latter. Sterilization requires subsequent
supervision whether in or out of institu-
tions." January, 1921.
3. State Hospital, Norwich. Dr. Henry M.
Pollock, Superintendent, reports:
(a) "Five persons — two men and three
women — have been under the law operated
upon at this institution and two of the
women have already left the hospital as they
could in consequence of the operation be
safely released from custodial care. Vasec-
tomy, was performed on the male cases and
complete ovariotomy on the female. I also
beg to advise you that at least one addi-
tional male case will shortly be reported to
the Board of Trustees and that in all prob-
ability other cases will be presented within
the coming year. I should like to add that
due to the opposition which apparently de-
veloped at the time of the enactment of the
law that upon my recommendation to the
Board of Trustees they decided that no
cases were to be referred to the surgical:
board until they had been considered by the
entire medical staff of the institution and
the majority of the staff had decided that
such an operation would be advisable nor
until a synopsis of their family and personal
history had been brought before the Board
of Trustees at a regular meeting and the
Board had sanctioned the reference to the
surgical board. This was not only with the
idea of satisfying the public that the opera-
tion was not performed in a haphazard
manner but only after careful study and also
to properly safeguard the patients in the
institution.
"I cannot agree with the statement that
the law as it now stands is practically
inoperable. The attorney general has decided
that the law is constitutional and we antici-
pate more and more having the operation
performed upon suitable individuals. We do
not, however, expect to have the operation
performed at this hospital until after each
individual case has been given careful con-
sideration. We anticipate that the field
worker now at this institution will secure
reliable information of the family and per-
sonal history and will thus be a great help
in assisting us in deciding in regard to the
advisability of the operation being per-
formed." October 4, 1913.
(b) Quoted from Dr. F. S. Wilcox,
Superintendent:
"Any case to be taken up under this law
is first brought before the staff for consider-
ation, and afterward referred to the Board
of Trustees for their sanction, and then we
get a signed permit from the nearest rela-
tive of the patient. Seven of these patients
have been able to leave the institution and
have gotten along outside, which would not
otherwise have been possible. Of this
number, three were married before admission
and two have married since discharge."
March, 1918.
(c) (Quoted from letter.) "Most of our
cases of sterilization have been dooe recently.
I think it is generally conceded that the
effect is more for prevention of procreation
than for any mental benefit.
"Before resorting to sterilization an exami-
nation must be made by three surgeons, one
of whom must be the Superintendent of the
hospital, and one of the three must perform
the operation.
"Connecticut does not operate very ex-
tensively. We occasionally sterilize cases —
both men and women — but we are not doing
Statisticai, Summary of Eugejnical Steriwzation
63
it -vigorously as we do not wish to cause "I believe that eugenical sterilization meets
much discussion. with general approval." February, 1931.
3. INDIANA.
The statute dates from 1907. Present Boys' School at Plainfield and the Girls'
status (January 1, 1922): Tested and de- School at Indianapolis were also subject to
clared unconstitutional by the State Supreme the act but this was never officially deter-
Court, May 11, 1921, after having been a mined). They performed eugenical steriliz-
dead letter since 1900. Seven (7) state insti- ing operations as follows:
tutions were subject to the act (possibly the
MALES PEMA1.es
Vasectomy Castration Salpingectomy Ovariotomy Total
1. Reformatory, Jeffersonville . . 118 0 0 0 118
2. State Prison, Michigan City.. 0 0 0 0 0
3. Women's Prison, Indianapolis 0 0 0 0 0
i. School for Feeble - Minded
Youth, Ft. Wayne 0 0 2 0 2
5. Farm Colony for Feeble-
Minded, Butlerville 0 0 0 0 0
6. Village for Epileptics, Newcastle 0 0 0 0 0
7. State Farm. Greencastle 0 0 0 0 0
Total to January 1, 1921... 118
Notes on the Enforcement of the Eugenical
Sterilization Law in Indiana.'
Legal eugenical sterilization began in this
state, following the inauguration of the prac-
tice eight years previous (1899), by the
Indiana Reformatory. Beginning with the
administration of Governor Thomas R.
Marshall (1909) the law has not functioned.
(For further details see Page 77, Bulletin
10b, 1914, Eugenics Record Office.)
Ex-Governor Marshall (1909) was opposed
to the carrying out of sterilization of crimi-
nals and mental defectives entirely on per-
sonal grounds, that is, he himself did not
believe in the theory or practice of steriliza-
tion. While governor, he instructed the
authorities at Jeffersonville not to continue
sterilization, otherwise he would take steps
to see that the law was declared unconstitu-
tional.
Governor James P. Goodrich (1920) is in
favor of sterilization and has so notified the
state institutions. There is, however,
nothing contemplated in the revision of this
statute until the case before the Supreme
Court has been decided. There is a more
or less definite feeling in the state that this
law, or a correspondingly effective law,
should be on the statute books.
Dr. A. H. Estabrook, Author of "The
Jukes, 1915," and now (1921) investigating
"The Ishmaels" of Indiana:
"Many people have stated that they deem
the constitutional rights of the individual to
include the power of sexual intercourse, and
many of these think that the operation of
0 2 0 120
sterilization prevents sexual intercourse; for
this reason alone they are opposed to the
sterilization. It is not the restriction of
child bearing that makes them antagonistic
to the sterilization operation, but it is a
feeling that the constitutional rights of the
individual have been taken away. They
readily appreciate the rights of society and
not of the individual to prevent child bear-
ing, and when the matter is explained to
them that the sterilization operation merely'
prevents reproduction and does not prevent
normal sex relations, a great majority of
these people have taken a different attitude.
1 am suggesting this to you as I feel it is
one of the most important things to incor-
porate in your report on sterilization. Some,
however, have felt that feeble-minded women
who have been sterilized will have more
promiscuous sex relations than before,
knowing that pregnancy will not occur.
That, of course, is a debatable question, but
my own feeling is that there will not be
much increase in illegitimate sex-relations
under these conditions." March, 1921.
(b) In response to inquiries the follow-
ing information and opinions were given:
1. Indiana Reformatory, Jeffersonville.
Dr. G. E. Mowrer, Physician.
(Quoted from letter.) "The sterilization
Statute is of the highest good socially. It
will eliminate those who are unfit to become
parents, both from mental and physical
standpoints." January, 1918,
1 Institutions 5 and 6 did not supply historical
comment.
64
Statistical Summary of Eugenical Sterilization
2. Indiana State Prison, Michigan City.
Edw. J. Fogarty, Warden.
(Quoted from letter.) "Relative to the
appointment of a Sterilization Board under
the Act of March 9, 1907, I would say that
we have never appointed any Board in com-
pliance with this act. In an institution like
ours it is all 'bunk'." February, 1931.
3. Indiana Women's Prison, Indianapolis.
Margaret M. Elliott, Superintendent.
(a) (Quoted from letter.) "We have
never yet taken advantage of this law."
January, 1918.
(b) (Quoted from letter.) "We have
never appointed a Sterilization Board in this
institution." February, 1921.
4. Indiana School for Feeble-minded Youth,
Fort Wayne. Dr. George S. Bliss,
Superintendent.
(a) (Quoted from letter.) "Governor
Marshall told the ' institution not to apply
the law, which has since become inactive.
Medically the statute is of small value, be-
cause public sentiment is not yet educated
up to it. Eugenically, if it could be generally
applied to high grade imbeciles and morons,
it ought to be of greatest value." January,
1918.
(b) Melvin Druckemiller, Acting Superin-
tendent, writes:
"Cases suitable for discharge are selected
for sterilization before leaving the institu-
tion. Before resorting to sterilization we
secure a family history which sorts out
abnormal relatives as far back as the grand-
parents, and beyond that whenever it is
possible to secure the information.
"There should be a State Agent in each
county and a County Committee to look
after and sterilize all married mental de-
fectives after one or more children at least.
"No doubt I am radical but I think that
most penal cases should be sterilized and
that all feeble-minded school inmates who
are about to be discharged or run away
should be sterilized as soon as there is evi-
dence of their permanent mental disability.
"We have sterilized one girl this summer
and will operate on another this week. We
performed a few operations in 1908 just after
the law was passed." February, 1921.
7. Indiana State Farm, Greencastle. Mr.
C. E. Talkington, Superintendent.
(a) (Quoted from letter.) "The Indiana
State Farm has never sterilized any prisoners
up to the present. While the statute of 1907
seems to give us power, there have been
some objections raised to our performing
the operation, and we are still undecided in
the matter." February, 1918.
(b) (From letter.) "The Indiana State
Farm is a prison for misdemeanants and
does not sterilize prisoners." February,
1921.
Indiana Boys' School, Plainfield. Geo. A.
H. Shideler, Superintendent, says:
"We understand that the statute permits
surgical operations as pertaining to inmates
and patients as you describe, but they are
not performed or carried out at this institu-
tion in any way. * * * We believe in
the proposition under proper control and
think it will aid materially in the prevention
of crime. After several years' experience
with these derelicts, I am of the firm opinion
that sterilization should be practiced with
care and good judgment for the betterment
of social conditions." April, 1918.
Indiana Girls' School, Indianapolis. Dr.
Kenosha Sessions, Superintendent, writes:
"Mr. Amos W. Butler, Secretary of Board
of State Charities, in answer to inquiries
concerning application of the sterilization
law, states: 'I think perhaps our law is
broad enough to include all the state institu-
tions for certain things, and also all of the
county institutions. So far as we know, the
law has not been put into operation regard-
ing the latter. Some of the hospitals for
the insane have considered applying it. It
is likely in the matter of confirmed criminals
the lawyers would say that it applied to the
Indiana Reformatory at Jeffersonville, the
Indiana State Prison at Michigan City, the
Indiana Women's Prison at Indianapolis,
and the Indiana State Farm at Putnamville.
Perhaps it would also apply to such persons
in county jails. It would NOT apply to
that class in the Indiana Girls' School or the
Indiana Boys' School, but it might apply
there in the case of rapists or mental de-
fectives. It is left for each institution to
construe it as seems to be its needs until
it has been interpreted by the courts.'"
February, 1918.
4. IOWA.
The statutes date from 1911 (second has fallen into disuse. Six (6) state institu-
statute, 1913; third statute, 1915). Present tions are now (since 1915) subject to the
status (January 1, 1922) : Theoretically ac- act. They have performed eugenical steriliz-
tive under volunteer system; practically, it ing operations as follows:
Statisticai, Summary of Eugunicai, Sterilization
65
— MALES FEMALES
Vasectomy Castration Salningeotomy Orariotomy Total
1. State Hospital, Clarinda 13 0 1 0 13
8. State Hospital, Independence. 3 0 3 0 4
3. State Hospital, Cherokee 0 0 0 0 0
4. State Hospital, Mount Pleasant 34 0 8 0 32
5. State Hospital for Inebriates,
Knoxville 0 0 0 0 0
6. State Hospital and Colony for
Epileptics, Woodward 0 0 0 0 0
Total to January 1, 1931... 38 0 11 0 49
Notes on the Enforcement of the Eugenical fifth General Assembly is not operable. We
Law in Iowa.' think that it should be provided in the statute
Formerly the six state institutions for the authorizing the sterilization of mental and
criminalistic were subject to the sterilization ^^o^al defectives that after the conclusion
law but following litigation growing out of has been reached that the good of society
the second statute (1913) its application was, requires sterilization of the individual, notice
by new legislation, limited to the above should be given, the case examined by the
listed institutions. As in several other ^"^'^^ ^^ ^ tribunal with authority to take
states, activity under the sterilization statute testimony offered to contradict the facts
in Iowa depends upon the interest of the f°""d by the board, and to enter the order
superintendent of the particular subject ^°'^ sterilization, or refuse it, as should be
institution. • determined from the facts found. We do
Excerpt's from Reports of the Iowa Board "°' ^^^o"^ the right of appeal to any other
of Parole, the Board of Control of State '"bunal. We submit the administration of
Institutions and from the Department of t^e law providing for the sterilization of
Health and Medical Examiners: '""n^tes of state institutions which are under
the jurisdiction of the State Board of Con-
1. (a) From the Report of the Iowa j^^,^ Qj^g^ than the penal institutions, should
Board of Parole: ^^ g;^^^ jj,g goard of Control and the super-
"At Cherokee State Hospital the board intendent and the physician of each institu-
for that institution ordered that the opera- tion; in other words, that the Board of
tion of vasectomy be performed on ten Control should be in such institutions sub-
males, and the operation of ligation of the stituted for the Board of Parole. The Board
fallopian tubes be performed on four of Control must make frequent visits to these
females. At the Independence State Hos- institutions and thus would there be financial
pital the board for that institution ordered saving. Besides, that board is in constant
that the operation of vasectomy be per- communication with the officers of such
formed on two males, and the operation of institutions, and also in possession of much
ligation of the fallopian tubes on two females. information concerning the inmates. The
At the Mount Pleasant State Hospital the Board of Parole, however, is in much better
board for that institution ordered that the position than the Board of Control to know
operation of vasectomy be performed on the record of the prisoners in the reformatory
twenty-four males, and the operation of and penitentiary; to know of their physical,
ligation of the fallopian tubes in the cases mental and moral conditions both before
of nine females. At the Clarinda State Hos- their conviction and after their incarceration,
pital the board for that institution ordered than is the Board of Control. The law,
the operation of vasectomy to be performed therefore, as to the penal institutions should
in the case of four males, and the operation remain as it is in this respect,
of ligation of the fallopian tubes in the cases "The sterilization of mental and physical
of twelve females. deficients is, as it seems to us, for the pur-
"Of the cases in which operations were pose of protecting the State from the
ordered, there were performed and reported increase of its mentally and physically de-
to the board as follows: At Cherokee thir- fective population; and not only that, but
teen, at Independence three, at Mount Pleas- also to prevent the suffering and misery that
ant twenty-two, at Clarinda thirteen. will be the result entailed on the children of
"* * * This board is of the opinion
,, ^ ^, , r ^, A . f .1 T^u- t 1 Institution 4 did not supply historical com-
that Chapter 187 of the Acts of the Thirty- j^ent.
66
Statistical Summary of Eugbnicai. Sterilization
such persons, and on relatives and friends
on whom they must be dependent. This in
no sense is a punishment, either when applied
to the inmates of Hospitals for the Insane,
or such like institutions, or to the penal
institutions.
"The classes included in any mandatory
provision would be certain to include some
individuals of whom it could not be said
there was a liability in procreation resulting
in children with a tendency to the defects
justifying the operation. For this reason we
do not favor a law which makes mandatory
the operation in cases of either mental,
physical or moral defectives.
"In conclusion, we recommend:
"First. That Chapter 187 of the acts of
the Thirty-fifth General Assembly be
amended or repealed, and a substitute
enacted providing for the sterilization of the
classes therein included, and for the reasons
therein stated.
"Second. That it shall be provided that
an order of sterilization be entered only after
hearing on notice, and that there shall be no
appeal from the order entered, giving only
the right of review by the higher court as
provided by law.
"Third. That the administration of the
law remain in the tribunal now authorized,
except as above pointed out.
"Fourth. That inmates of jails and
county homes or such like institutions should
not be included.
"Fifth. That the performance of the oper-
ation should not be made mandatory in any
case.
"Respectfully submitted this 31st day of
December, 1914.
"W. H. BERRY,
"J. E. HOWE,
"D. C. MOTT,
"Iowa Board of Parole."
1913-14.
This report was accompanied by four
letters addressed to the State Board of
Parole. They appear as follows:
Exhibit "A."
Cherokee, Iowa, November 29, 1914.
Hon. W. H. Berry,
Chairman Board of Parole,
Des Moines, Iowa.
My Dear Sir: To begin with, I desire to
go on record as one who is very much in
favor of the so-called Perkins Law. While
the law as it now stands may need a few
changes, I am not prepared at this time to
make any suggestions.
Of the cases operated on in this institution,
five have left on parole. I should have hesi-
tated very much recommending any of these
cases for a parole prior to sterilization. I
believe I can truthfully say also, that in many
cases operated on there has been a notice-
able change for the better, both in their
mental as well as their physical condition.
I am inclined to think that the law as it now
stands is rather too broad in its application,
so far as the insane cases are concerned, and
it may be advisable to make a change in this
respect. The writer hopes that the present
law, with possibly a few changes, will at
least be given further trial. I am of the
opinion, too, that public sentiment in favor
of the law will have a tendency to become
more and more favorable.
Sincerely yours,
M. N. VOLDENG,
Superintendent.
Exhibit "B."
Mount Pleasant, November 30, 1914.
Hon. W. H. Berry,
State Board of Parole,
Des Moines, Iowa.
Dear Sir: I have your letter of the 28th,
and in reply will say we are very anxious to
have the law so worded or changed, that
there will be no question about the liability
in sterilizing the patients in our state hospi-
tals for the insane and the institution for the
feeble-minded.
I believe that the authority for ordering
the sterilization of these patients in our hos-
pitals for the insane particularly, and I
believe also in the institution for the feeble-
minded, should be left to the superintendent
of the institution, and the Board of Control,
and I suggest you make this recommenda-
tion in your report to the governor.
The Board of Control visits the institu-
tions each month, and is in close touch with
the patients themselves, as well as a great
many of the relatives of these patients.
They are in position to advise what is best
for the patients, not only the patient himself,
but also the relatives. It is confusing to the
relatives to have the superintendent and the
Board of Control encouraging the steriliza-
tion of certain patients in our institution,
and then have the Board of Parole come
and pass upon these cases; in other words,
the relatives and the patients get confused
concerning the two boards, so I am in favor
Statistical Summary of Eugenical Sterilization
67
that the Board of Control, who, as stated
above, is in close touch with the patients and
relatives, have the authority to order the
sterilization of certain patients.
I am in hopes that the law may be so
changed as to not have to have the consent
of the relatives for the sterilization of certain
patients between the ages of fourteen and
fifty years. I would like to have it arranged
so that the Board of Control can pass upon
these cases during the semi-annual visits in
the spring and fall of each year, and issue
orders to the superintendent that certain
patients be sterilized.
I am anxious that you recommend to the
governor the enforcement of this law in our
state hospitals for. the insane and the institu-
tion for the feeble-minded. The law, in my
opinion, is a good one, and this work should
be encouraged, as it is an advancement in the
right direction.
. I shall be glad, indeed, to see Iowa take;
a stand on this question and continue this
work. Good results have already been
accomplished, and there has not been a single
bad result following the sterilization of any
of these fifty or more cases, which we have
operated on in this institution. In my
opinion nothing but good can come from
the sterilization of the young men and
women committed to this institution as
insane. I am glad to make this report to
your board, and I hope you will do all you
can to get proper legislation this coming
winter on this most particular matter of
sterilization of the insane and feeble-minded.
Very truly yours,
C. F. APPLEGATE,
Superintendent.
Exhibit "C."
Clarinda, Iowa, November 30, 1914.
Iowa Board of Parole,
Des Moines, Iowa.
Gentlemen: Your letter of recent date by
Judge W. H. Berry is at hand. As to my
views relative to the matter of operations
performed on various patients here, namely,
vasectomy, I can only repeat what I said
to you on your last visit.
In the cases tried, it seems to have had a
beneficial, influence. One patient has since
gone hpme to a neighboring county, and
from all we can learn there has been no
complaint of him whatever, and he is getting
along nicely. Other young patients on
whom we operated have become more
orderly and quiet and, while defective in
mental development, which could not be
irnproved by any treatment, the influence of
the operation seems to have been favorable.
Considering such slight experience as we
have had, I am favorable to further opera-
tions in suitably selected cases.
Sincerely yours,
MAX E. WITTE,
Superintendent.
Exhibit "D."
Independence, Iowa, Dec. 4, 1914.
Iowa Board of Parole,
Des Moines, Iowa.
Gentlemen: Replying to your letter dated
the 28th ult., signed by Chairman Berry, the
following is a brief report of the progress
made at this institution under the steriliza-
tion law enacted by the last session of the
General Assembly:
At the Independence State Hospital the
sterilization law has been utilized in the case
of three patients, two males and one female.
J. H. No. 11808, a male patient, single, aged
fifty-one on admission January 23, 1912. The
mental derangement was diagnosticated as
sexual perversion with dementia praecox.
The patient was born in Chicago in 1861,
attended the Lincoln and Wells schools in
that city, leaving school at fourteen. He was
in the eighth grade doing common fractions
and decimals at the time he discontinued
school. He worked at various occupations,
was dissipated and spent his time from Sat-
urday evening until Sunday night in the
company of prostitutes. He had gonorrhea
when sixteen years of age. The blood serum
reacted negatively to the Wasserman test.
He admits bestiality, having performed the
act of sodomy with a gelding. He was sen-
tenced to the Fort Madison prison for
sodomy in 1905. This patient was sterilized
about January 25, 1914, the operation being
vasectomy.
J. H., No. 11336, male, single, age twenty-
seven years on admission April 22, 1910,
diagnosis precocious dementia. The patient
was transferred from the insane department
of the reformatory at Anamosa, having been
convicted of manslaughter and committed
to prison. The patient claims that he did
not know anything of his crime while en-
gaged in the act, but that he has always
been subject to spells of excitement when
he would not realize what he was doing.
The patient was usually quiet and well be-
haved, but occasionally would undergo an
68
Statisticai, Summary of Eugbnical Steriuzation
attack, apparently of a hysterical nature,
during which time he would attack attend-
ants and patients indiscriminately, and was
.with difficulty overpowered and controlled.
This patient was sterilized about February
7, 1914, the operation being vasectomy.
M. T., No. 12015, a female, single, admitted
November 28, 1913, age sixteen. Form of
mental derangement epileptic insanity. The
patient is a native of Iowa and has one
brother younger than herself. The brother
seems all right mentally. This patient was
not considered bright as a child, but was
healthy. She had very little education and
of late years has been considered queer.
She was never sociable and has not had any
severe illness or injury. She has no bad
habits and was employed in house work
which she performed rather indifferently.
The menstrual periods were painful, so that
it was necessary for her to go to bed at
these times. The epileptic seizures usually
appeared during the monthly periods. When
seven years old she showed evidence of
something wrong with her mind, was quite
queer, although she was not thought to be
insane. Just before coming to the hospital
she was confused. This condition followed
severe seizures. This patient was rendered
asexual about February 13, 1914, by the
operation of ligation of the fallopian tubes.
These three patients are all in the hospital
at the present time. We are not able to
determine that the operation has influenced
the mental state of any one of them, either
favorably or unfavorably. Should they be
discharged or escape from the institution
they would not be able to propagate their
kind. The sterilization of the unfit is, we
believe, in accord with advanced scientific
thought. There is considerable opposition,
however, to the practical application of such
enactments on the part of friends of the
patients. We doubt the advisability of
making such acts mandatory, until the public
shall have been more thoroughly educated
along these lines. It is difficult, if not im-
possible, to enforce the laws that are not
supported by public opinion.
Very sincerely yours,
W. P. CRUMBACKER,
Superintendent.
(b) The Board of Parole, Des Moines.
Winfield S. Withrow, Chairman of the
Board, writes: "The original act pertaining
to sterilization passed by the General As-
sembly of the State of Iowa was held un-
constitutional in the Federal Court and was
thereafter repealed by Chapter 363 of the
Thirty-sixth General Assembly. The orig-
inal act passed by the Thirty-fifth General
Assembly was amended by the Thirty-sixth
General Assembly authorizing such opera-
tions in insane hospitals only, where the
superintendent and the majority of his medi-
cal staff believed it to be for the best interest
of the patient and also provided that the
operation be first approved by the Board of
Control and with the written consent of the
husband or wife of the patient if married,
and if not by the guardian or next of kin.
"The Board of Parole has since that time
had no connection with that work and we
have no records bearing upon it." February,
1921.
2. Report of Board of Control of State
Institutions, 1916 (pp. 39-40):
"The law of the Thirty-fifth General As-
sembly empowering the Board of Parole to
sterilize certain described inmates in the
hospitals for the insane, as well as those at
the Reformatory and State Penitentiary,
was, by the Thirty-sixth Assembly, repealed,
and in its stead a law was passed authorizing
the superintendent and his medical staff, by
a majority vote, by and with the approval
of the Board of Control of State Institu-
tions, to sterilize such of the inmates of the
insane hospitals as they might direct, after
the husband, or wife, parents, or nearest
of kin had given their consent. Very few
cases have been acted upon, since the adop-
tion of the law of the Thirty-sixth General
Assembly, from the hospitals and the board
is not in shape to offer any suggestions as
to the operation of the new method. The
few operations that have been performed,
we learn from the superintendents, have
been followed by beneficial results." 1916.
F. S. Treat, Secretary, Board of Control of
State Institutions:
"Originally, the law was administered by
the Board of Parole, but this has been
changed so that it is now in our hands.
Amendments to the law, however, have so
modified it that its operation is practically
confined to the hospitals for the insane, and
at these institutions nothing can be done
without the consent of the husband, wife or
nearest kin. The law, as it pertained to the
criminal, was declared unconstitutional. A
few operations have been performed at the
hospitals for the insane, and previously at
Statisticai, Summary of Eugenical STERitizATioN
69
the institution for the feeble-minded, but as
amended, the law is practically a dead letter.''
March, 1918.
3. Department of Health and Medical
Examiners, Des Moines. Guilford H.
Sumner, M. D., Secretary-Executive
Officer, reports:
"The law of 1913 was unconstitutional
because it provided a cruel and unusual
punishment, because it denied to the prisoner
to be operated upon due process of law, and
because it is in effect a 'bill of attainder' in
that it provides for the infliction of a punish-
ment for past offenses by legislatVe act
without jury trial. Davis vs. Berry, 216
Fed. 413." January, 1931.
Institutional Reports.
In response to inquiries the following
information and opinions were given:
1. State Hospital, Clarinda. Dr. M. E.
Witte, Superintendent, writes:
"The influence of the operation was good in
selected cases — feeble-mindedness and insan-
ity with erotic tendencies. The eugenical
value of the statute is excellent. Several of
the young men sterilized are out and make
a living. Same is true of the young woman,
and this without danger of procreating de-
fective children.'' January, 1918.
2. State Hospital, Independence.
(a) Dr. W. P. Crumbacker, Superintend-
ent, writes: "The sterilization statute is not
very popular with the public as yet. The
patients and relatives also object to it in
many cases. We have had so few operations
that we feel incompetent to make a definite
statement concerning its medical value.
However, eugenically it is probably valuable
in preventing the propagation of undesirable
citizens." January, 1918.
(b) R. A. Stewart, Superintendent, writes:
"The only way sterilization can now be done
in Iowa is for the relatives to obtain the
consent of the Board of Parole. This Board
met at the hospital, organized a State Sterili-
zation Board which interviewed the selected
patients and went into their heredity, form
of psychosis and number of previous attacks
and voted on action as prescribed by the
Law of 1913.
"Sterilization is the only method to eradi-
cate insanity but public opinion is still di-
vided on this subject and I regret that the
members of the American Medico-Psycho-
logical Association did not indorse it in 1913
at Niagara Falls." January, 1921.
3. State Hospital, Cherokee. George Don-
ohoe, M. D., Superintendent, says:
"At present eugenical sterilization is in
abeyance pending legislation which needs to
be made clear and operative.
"Theoretically, sterilization is good; prac-
tically, of doubtful value in insane patients,
except in a few instances.'' January, 1921.
5. State Hospital for Inebriates, Knoxville.
Dr. M. C. Mackin, Superintendent, writes:
"I do not interpret the present steriliza-
tion law as applying to this institution. The
previous law which applied to all institutions,
as I understand it, under the control of the
Board of Control of State Institutions, came
under a former act which was repealed.
"A convict of the penitentiary at Ft. Madi-
son, some few years ago, brought action
against the Board of Parole to prevent the
carrying out of the intent of the law as it
applied to him. The matter was carried to
the Supreme Court, which decided that the
law was unconstitutional. The next General
Assembly enacted the present law.
"There is no doubt in my mind that a
great many of our patients should be emas-
culated. A certain percentage of them are
marked degenerates and they should not be
permitted to propagate their kind. I am a
firm believer that this law should be enforced
wherever conditions warrant it." January,
1918.
6. State Hospital and Colony for Epileptics,
Woodward. M. N. Voldeng, M. D.,
Superintendent, writes :
"Nothing is being done in Iowa along this
line for the reason that the first law enacted
was deemed unconstitutional.
"Generally speaking, we are favorable to
the policy. While I was superintendent of
the Cherokee State Hospital we performed
a number of operations during the first year
after the law was enacted." January, 1921.
5. KANSAS.
The statutes date from 1913 (second are subject to the act
statute 1917). Present status (January 1,
1932): Theoretically active, but practically
a dead letter. Ten (10) state institutions
They have per-
formed eugenical sterilizing operations as
follows:
70
Statisticai, Summary of Eugenical SteriIvIzation
_— MALES PBMAl/BS
VaBCOtoroy Castration Salpingectomy Orarlotomy Total
1. State Hospital, Topeka 7 4 33 19 53
2. State Hospital, Osawatomie. . 0 0 0 0 0
3. State Hospital for Epileptics,
Parsons 0 0 0 0 0
4. School for Feeble - Minded,
Winfield 0 1 0 0 1
5. State Penitentiary, Lansing. . . 0 0 0 0 0
6. State Hospital, Larned 0 0 0 0 0
7. Industrial Reformatory,
Hutchinson 0 0 0 0 0
8. Industrial School for Girls,
Beloit • 0 0 0 0 0
9. Industrial School for Boys, '
Topeka 0 0 0 0 0
10. Industrial Farm for Women,
Lansing 0 0 0 p 0
Total, January 1, 1931 7 5 33 19 54
Notes on the Enforcement of the Eugenical -be carried out in conjunction with some
Sterilization Law in Kansas.' other operative procedure.
Like Indiana, Kansas practiced eugenical "The recognition of the need of some such
sterilization on the responsibility of an measure is fully apparent but unfortunately
interested institution before the practice was '* has been impossible to aflfect legislation
authorized by law. About 1898 the State that would adequately protect those respon-
School for Feeble-Minded at Winfield in- sible for the selection of such cases."
augurated this work. The "red tape" of the February, 1931.
present law is complained against by several 3. State Hospital for Epileptics, Parsons.
institutions. O. S. Hubbard, Superintendent, writes:
In response to inquiries the following "We have considered practically no cases
information and opinions were given: for eugenical sterilization in our institution.
1. State Hospital. Topeka. Dr. M. L. P"'''''^ °P'"'°" '^ "°* ^^^'^y ^"^ '*• "^he steril-
Perry, Superintendent, writes: '^^''°" °^ institution inmates is often of little
"Patients who plainly should not bear chil- ^^^"^^ "' ^h""''^ '=°'"^ ^^■""^'^ *» ^^ °^ ^^'"«
dren and who are discharged not restored ^'"^ *^** ^* P''"^"' '^ impracticable." Janu-
are sterilized. They leave the institution as ^'^^' '^^^'^•
soon as they recover from the operation. *• State Home for Feeble-Minded, Winfield.
"During the past two years a more aggres- (a) Dr. F. C. Cave, Superintendent,
sive policy is being pursued. We have a says: "The only institution in the State as
good working statute and I am in favor of far as I know that has ever done any steriliz-
it." April 8, 1921. '"K upon its inmates is this Home at Win-
„,.,,, ^ . field. That was twenty years ago and the
2. State Hospital for Insane Osawatomie. Superintendent at that time was a Dr.
writes Carmichael, Superintendent. p;,^,^^^ ^^^ ^^^^ ^^^.^^^^ .^ ^^^ ^^^^ by
Dr. Emerson. About fifty cases were oper-
(a) "The statute is ambiguous and in- ^ted on, half girls and half boys, the
volved, and smothered in red tape to a operation being the complete removal of
degree that makes it practically inoperative." the testicles in the boys, and complete re-
Dr. Carmichael reports performing only ^^v^i „£ ovaries in the girls. Since that
three operations in two years, and says that time nothing has been done except in dis-
the medical value of the statute is "practi- eased conditions of these organs or in cases
cally ml," and that its eugenical value is of congenital hernia where operative pro-
"slight." January, 1918. cedures were instituted to remedy the defect
(b) "Legislation in this state is so vague a„d „o attention given to the enclosed tes-
in Its application that sterilization is not tide, removing it with the hernial sac. A
undertaken with reference to the criminal
insane or defective classes, except as it may me"nt'^"^""°" ^ ^^^ "°' supply historical com-
Statistical Summary of Eugrnicai, Sterilization
71
storm of protest was raised at that time and
the populace were thinking of burning Dr.
Pitcher at the stake, or at least they wanted
to. Probably some of the noise they made
was due to politics, as these stigmata were
rife at that time, and the fellow who had a
job had to be uprooted and turned out every
two years or at least every time they changed
faith.
"Since then nothing has been done, the
various superintendents, of whom I am one,
were afraid to start anything and particu-
larly so during the past few years when the
Legislature made laws pertaining to the
measure, and if the red tape wasn't followed
to the letter, it meant a penal offense and, a
fine that would take all our loose change. In
1913 such a law started, but the Governor
didn't sign it, and it became a law by being
kept on his desk for several days without
being returned to the House. However,
lawyers didn't take long to discover that it
was not drawn properly, couldn't be put in
effect, and besides it had so much red tape
to it that getting alcohol free of tax was a
picnic compared to it. The last Legislature
tried its hand at the same thing and pro-
duced an enactment that looked a whole lot
better, yet it had plenty of red tape to it,
and our present Board in consultation wiih
experts, including some of our older Super-
intendents, decided for the present it wasn't
a wise thing to put the law into effect. I
haven't been advised as to why they deemed
it best to be so conservative.
"So far, that is as far as Kansas has gone
in the matter, but I presume eventually the
measure will crop out and be put in tangible
form, so that it will be of some value to the
State, the individual and the community."
In response to further inquiry. Superin-
tendent Cave wrote that "he was of the
opinion that both the medical and eugenical
values of the existing sterilization law were
high, and that he intended applying the
operation to a considerable number of the
moron group in his institution." March,
1918.
(b) T. E. Hinshaw, M. D., Physician to
the School: "I wish to say that the single
case of castration was not done under the
auspices of this institution. The inmate's
parents took him to their home town where
the operation was done. In this institution
nothing has been attempted in the line of
sterilization as the operation is now so
hedged about with legal technicalities and
difficulties that no one cares to try it.
"I would cut the red tape so as to make it
possible to castrate those who are a menace
to society. I think that the general policy
of sterilization (by that I mean castration)
is correct." January, 1921.
5. State Penitentiary, Lansing. S. L. Ax-
ford, M. D., Deputy State Health Officer,
says:
"As you perhaps know, we have a steriliza-
tion and castration law in Kansas; so far as
I know, it has never been used. Some two
years ago the Secretary of the State Board
and one or two members of the Board and a
psychiatrist from the University examined
some prisoners with this end in view, but I
have never seen a report that was made and
I am certain no operations have been per-
formed at the penitentiary." January, 1921.
6. (a) Larned State Hospital, Lamed,
Dr. L. R. Sellers, Superintendent.
In answer to the question. What, in your
opinion, is the medical value of the steriliza-
tion statute? wrote: "It is a handicap. Its
provisions of a public trial for each case in
the District Court discourages the opera-
tion.'' In further reply to the question.
What is its eugenical value? he said: "It
would be great. The unfit should not be
permitted to procreate."
Excerpts from letters of Dr. Sellers:
"Prior to the enactment of eugenical sterili-
zation statute of 1913, I have no data of the
number of cases operated upon in the state,
nor an accurate history of the patients, prior
and subsequent to the operation. These
operations were not performed on account
of eugenic reasons, but for the benefit of the
patient. The operations, so far as I know,
were upon two classes — masturbators and
rapists.
"I was, prior to January 1, 1915, a member
of the medical staff of the Osawatomie State
Hospital fifteen years. During that time we
unsexed by castration seven or eight patients
(men). I regret that I am unable to give
you the kind of a report of these cases that
you would wish. At that time we were
agitating the matter of preventing the mar-
riage of degenerates, but little was said of
sterilizing degenerates.
"During the last six years the people of
our state have been taking a lively interest
in the matter of protecting posterity by
sterilization of the unfit. When there was
no statute bearing on this procedure, the
72
Statistical Summary of Eugbnicai, Sterilization
friends of the patient readily gave consent
to have the operation performed; I do not
recall an instance of a refusal.
"It would appear that our law of 1913
was enacted to protect the degenerate
against the doctors, whom they evidently
regard as a bloodthirsty gang. If a Super-
intendent of one of our hospitals wishes to
unsex a degenerate with a view of preventing
the procreation of the unfit, he must begin
a suit in the District Court of the county
from which the patient was committed
(sometimes this is more than two hundred
miles distant), go in person and back the
prosecution. There are not many superin-
tendents who would care to go to all this ex-
treme trouble. Therefore this 1913 statute
completely blocks sterilization in Kansas.
"In addition to the cases operated on at
Osawatomie, I am of the belief that patients
were castrated at the hospitals of Topeka
and Parsons. But I think this work was all
done prior to enactment of the law men-
tioned.
* * * "There has recently been a great
awakening of interest along the line of
eugenics in Kansas. The women's clubs of
the state have everywhere discussed the sub-
ject. But should we operate without going
through the court procedure, we would be
liable to heavy costs; therefore I think it
likely that most superintendents will see to
saving the costs." February, 1918.
Replying to questionnaire. Dr. Sellers
writes: "Prior to 1913, the Superintendents
of our state insane hospitals, after obtaining
the consent of patient's family, would order
his Medical Staff to sterilize a patient. But
little trouble was ever encountered in secur-
ing consent of family. Since the enactment
of the 1913 law, there is a heavy penalty for
sterilizing without going through a form in
the District Court, and consequently I ex-
pect less work has been done along this
line than was done prior to the legislative
enactment. Under the old method of steril-
izing by castration, the patients were de-
prived of glands that impaired to some ex-
tent their nutrition. Yet for the good of
posterity the operation was justified.
"No such objection can be urged against
vasectomy or section of tube. Our degen-
erates are rapidly increasing, and an effort
must soon be made to remedy this. It is
hoped that our next legislature will so amend
the sterilization law that physicians in our
state institutions may have a free hand to
do what is needed to stop the propagation
of degenerates." February, 1918.
(b) (Quoted from letter written by Dr.
L. R. Sellers, Superintendent.) "We have
done no work in the line of sterilization for
six or more years. Some twelve or fifteen
years ago, I was a member of the Medical
Staff of the Osawatomie Hospital and at
that time there was no statute against, or
regulating sterilization. We performed the
operation on many of our patients. In each
case we first obtained the consent of the
nearest kin, and then without any publicity
operated. The results were satisfactory in
every particular. Then the legislature of
our state enacted a law, providing that
before sterilization could legally be per-
formed, the patient must have his day in
court. The procedure was about as follows:
The superintendent must take the patient to
the county from which he was sent, and
have hearing of the case. The superintendent
would appear before a jury (often summoned
from the livery stables, and court house
loafers). This jury of incompetents would
hear the evidence that the superintendent
gave, then pass upon it. You can readily see
how enthusiastic the superintendents would
be in complying with the law. I think this
act stopped the work of sterilization in
Kansas. The 1917 Legislature repealed this
law and enacted another providing that in
case a superintendent of a hospital desired to
sterilize a patient he must first make an
application to the Board of Administration,
who would hold a meeting at the institution,
and then grant or refuse the request. This
procedure gives much publicity about the
institution and is, therefore, objectionable.
What we need is an act making it obligatory
on the superintendents of our institutions for
the insane to sterilize all female patients
before sending them out on parole, provided
they have not passed the childbearing period,
and all male patients of any age. I would
object to castration in either sex, on account
of the nutritional function of the ovary and
testicle.
"The present statutes on this subject are
too complicated. I would have this whole
matter decided by the patient's friends and
the hospital staff, and then the work would
be done in a quiet manner without publicity.
I would have the sterilization produced by
vasectomy, or section of tube in female.
Like begets like, the insane and epileptic
will continue to beget degenerate children.
The stream of degeneracy is growing wider
and deeper. Sterilization will stop the
stream at its fountain head.
"All patients should be sterilized before
Statisticai, Summary of Eugenical " Sterilization
73
sending them to their homes. This work "However, I have been superintendent of
should be obligatory on the superintendent. the institution here at Beloit for only about
Friends of patients would gladly give con- fifteen months, and before coming from the
sent. It is absolutely necessary to stop East I visited eight or ten different institu-
procreation of the unfit." tions, mostly juvenile reformatories. I
8. Industrial School for Girls, Beloit. found that most superintendents believe in
(a) Lillian M. Mitchner, Superintendent, the measure, but very few use it on account
in response to the inquiry, What, in your of public sentiment and 'kinks' in state laws,
opinion, is the eugenical value of the sterili- So far as I know, there has never been an
zation statute? wrote: "It seems to me that operation of this kind performed on an
if it were enforced in our institutions for inmate of the Beloit School,
feeble-minded and subnormal men and "I am firmly convinced that if I stay in
women, boys and girls, it would be of in- this type of work I shall use every known
calculable value along eugenical lines." means of curing physical delinquency and
(b) Etta Joe McCoy, Superintendent, disease." January, 1931.
wrote: "This state has a law for steriliza- 9. Industrial School for Boys, Topeka.
tion, but nobody seems to have had the H. W. Charles, Superintendent, wrote:
nerve to do very much with it. Personally, "This law has been regarded as a dead
I have been greatly interested in that phase letter in this state. The provisions contained
of reform work and that means of checking in it are such that it has been deemed utterly
the oncoming tide of paupers and delin- impracticable. It was intended that this law
quents ever since they first tried to pass the should apply to this institution as well as
law in Oregon a number of years ago, as I others, but for the reasons above given, no
happened to be in the state at that time and operations have been undertaken in this
watched with much interest the discussions institution, and, so far as I know, none in
through the state legislature. the state." January, 1918.
6. MICHIGAN.
The statute dates from 1913. Present expense") were subject to the act; one
status (January 1, 1923) : Inoperative, de- eugenical sterilizing operation was per-
tlared unconstitutional by state courts, 1918. formed under it. The eight state institu-
Eight (8) state institutions (and others tions are as follows:
"maintained wholly or in part by public
MAI-ES • FEMALES
Vasectomy Castration Salpingectomy OTarlotomy Total
1. State Hospital, Kalamazoo... 0 0 0 0 0
3. State Hospital, Pontiac 0 0 0 0 0
3. State Hospital, Traverse City. 0 0 0 0 0
4. State Hospital, Newberry 0 0 0 0 0 -
5. State Hospital, Ionia 0 0 0 0 0
6. Home and Training School,
Lapeer 0 0 0 0 0
7. Psychopathic State Hospital,
Ann Arbor 0 0 1 0 1
8. Farm Colony for Epileptics,
Wahjamega 0 0 0 0 0
Total to January 1, 1931 ... 0 0 1 0 1
Notes on the Enforcement of the Eugenical "If the statute could be fully carried out.
Sterilization Law in Michigan.' I believe it would be of considerable value.
Executive authorities in Michigan con- Unfortunately there would be considerable
sidered the sterilization law as of doubtful opposition for the sterilization of Manic-
constitutionality from the first and the first Depressive cases, who are the most danger-
attempt to use it resulted in -a test case, in ous." January, 1918.
the course of which litigation the courts 3. State Hospital, Traverse City. James
held the law unconstitutional. D. Munson, Medical Superintendent,
In response to inquiries the following wrote:
information and opinions were given: "I am not aware that any of the State
1. State Hospital, Kalamazoo. Dr. Her- Hospitals in Michigan have felt justified in
man Ostrander, Superintendent, wrote: performing any of the operations that have
' Institutions 2 and 4 did not supply historical
comme"*
74
Statisticai, Summary of Eugenical Sterilization
been suggested to produce sterility. There deters one from performing any operation
was a law passed in 1913, I believe, but the of this sort. It undoubtedly could be done
same was. so worded that it was practically as a medical measure without the laW. The
impossible to carry it out. I do not regard present statute is, in my opinion, too cum-
sterilization as of any value except with bersome and complicated. So many formal-
reference to patients who are likely to leave ities must be complied with that one is often
the hospital. disinclined to take up the matter of operation.
"Although this hospital has never done Its value as a eugenical measure is unques-
sterilization on any of its patients, those of tioned, but the desired end could be
procreative age about to be discharged accomplished by a much simpler statute."
might rightfully be considered with great January, 1918.
care and some should doubtless be sterilized (b) "The sterilization statute of this
if the laws could be enacted in states so as state has been declared unconstitutional and
to protect the hospital. The Michigan law since this, has been in abeyance. At the
offers no such protection." January, 1921. present time it seems impossible to frame
5. State Hospital, Ionia. any statute that would permit of general
Dr. Robert H. Haskell, Superintendent, sterilization for eugenical purposes. It is
writes that there have been no operations our intention to present a new mental defi-
under this law in his institution, and that his ciency bill to the present legislature. In this
opinion as to the medical or eugenical value is a provision for sterilization in the foUow-
of this statute would be purely theoretical. '"g way: Any feeble-minded person who
January, 1918. will submit to sterilization will not be de-
6. Itfichigan Home and Training School, barred from contracting marriage. I do not
Lapeer. Dr. H. A. Haynes, Medical see how we can go much further than this
Superintendent, wrote: '" Michigan at the present time." January,
"I petitioned to have a number of our 1921.
patients operated upon, as provided by the 8. Farm Colony for Epileptics, Wahja-
sterilization law, but their parents or guard- , mega. Dr. Robert L. Dixon, Superin-
ians objected, and the matter was taken tendent, wrote:
before various courts, and at present is "The sterilization has no medical value
before the Supreme Court for an opinion on not available under former acts. It is of
its constitutionality." January, 1918. eugenical value in preventing reproduction,
7. (a) Psychopathic State Hospital, Ann but a poor substitute for isolation or coloni-
Arbor. Dr. Albert M. Barrett, Superin- zation.
tendent, wrote: "We have six females and one male who
"The constitutionality of this law has are sterile as a result of operations before
been questioned, and the matter is now coming to this institution; but we have had
before the Supreme Court of this state for no operations in this institution." January,
decision. The penalty attached to this law 1918.
7. NEBRASKA.
The statute dates from 1915. Present tions are subject to the act; they have per-
status (January 1, 1922) : Active under formed eugenical sterilizing operations as
volunteer system. Nine (9) state institu- follows:
MALES FEMALES
Vasectomy Cnatratlou Satiilnsoctoroy Orariotoray Total
1. Institute for Feeble- Minded
Youth, Beatrice 2 0 5 0 7
2. Hospital for Insane, Norfolk. ;iO 0 « o aS
3. Hospital for Insane, Ingleside 27 0 ."> a 32
4. Hospital for insane, Lincoln. 28 () 44 0 78
5. Penitentiary, Lincoln 0 .0 U o 0
6. Industrial School for Boys,
Kearney 0 o 0 0 0
7. Industrial Home, Milford 0 0 0 0 0 .
8. Girls' Industrial .School, Geneva 0 0 0 0 0
9. Industrial Farm for Women,
York 0 0 0 0 0
Total to January 1, 1921..
87
62
6
155
Statistical Summary of. Eugenical Sterilization
75
Notes on the Enforcement of the Kugenical
Sterilization Law in Nebraska.^
In the character of the law and the compe-
tency of its application, Nebraska shares
with California, Washington and Oregon the
claim to the most business-like and scien-
tific administration of eugenical sterilization.
1. Biennial Report of the Board of Exami-
ners of Defectives.
(a) First Biennial Report, 1916.
To His Excellency, Honorable John H.
Morehead, Governor, and to the Honor-
able Members of the Board of Commis-
sioners of State Institutions, Howard
Kennedy, Henry Gerdes and Silas A.
Holcomb:
"Gentlemen:
"We, the members of the Board of Ex-
aminers of Defectives, desire to submit our
report covering the period of time from the
creation of the Board to the 30th day of
November, 1916.
"It has been the policy of the Board of
Examiners of Defectives to adopt a con-
servative policy in dealing with all applicants
for sterilization. We have ever kept in
mind the contention of the critics to sterili-
zation, that the so-called geniuses are some-
times victims of acute neurosis.
"In each of our institutions we observe
the criminal, the delinquent and otherwise
defective individual, a ward of the state
through no fault of his, but by reason of an
endowment the product of faulty mating and
ancestral defection. This fact has convinced
the Board that a certain duty confronts us
in each applicant for sterilization; first, to
determine in the ancestral st'rain the ten-
dency to insanity or feeble-mindedness;
second, to carefully weigh the probable re-
sult of procreation and its effect upon the
coming generation and to act with the
thought of protecting the individual and
safeguarding the interests of the state.
"We recognize the feeble-minded class as
the most prolific class and potentially the
most dangerous from the standpoint of race
standards. We have, therefore, unhesitat-
ingly authorized the sterilization of the male
feeble-minded wherever application was
made. With the female feeble-minded we
have recognized complications which made
the task of disposing of these applicants less
simple. In the first place the surgical pro-
cedure is much more complicated and after
sterilization the social problem is a compH-
'Institutions 5, G, 7 and 8 did not supply
historical comment.
cated one as such individuals may become
prostitutes and carriers of venereal diseases.
We have, therefore, advocated custodial care
rather than sterilization in the case of the
feeble-minded female. In • the applicants in
which the condition was one of frank insan-
ity we have been guided largely by the
wishes of the patient and relatives in author-
izing sterilization. We have refused sterili-
zation or parole in other instances and have
permitted some cases to be paroled- without
sterilization, being guided by the family
history as well as the specific form of mental
alienation from which the applicant was suf-
fering.
"We are pleased to report that universal
good results have been obtained in all cases
sterilized. In each institution extreme care
has been exercised and in no instances have
difficulties or complications arisen. We
include herewith a table which will reveal
in a general way the efforts of the Board.
"Respectfully submitted,
"B. F. WILLIAMS, Chairman.
"W. S. FAST, Secretary.
"GEORGE E. CHARLTON,
"D. G. GRIFFITHS.
"H. WINNETT ORR."
Table Containing Patients Coming Under
the Observation of the Board of Exami-
ners of Defectives for the Period Ending
November 30, 1916: Men. women. Total.
Whole number of patients
passed upon 40 49 89
Number ordered sterilized.. 15 30 35
Sterilized according to law.. 9 6 15
Number authorized paroled
without sterilization 20 36 46
Number examined, action de-
ferred 5 3 8
No patient examined from the penitentiary,
either of the industrial schools or industrial
home. November, 1916.
(b) Second Biennial Report, 1918:
"To his Excellency, Honorable Keith Ne-
ville, Governor, and to the Honorable
Members of the Board of Commissioners
of State Institutions, Henry Gerdes, Silas
A. Holcomb, and Eugene O. Mayfield.
"Gentlemen:
"We submit herewith the Second Biennial
Report of the Board of Examiners of De-
fectives, covering the period beginning De-
cember 1, 1916, and ending November 30,
1918. This Board was created and appointed
by the Board of Commissioners of State
Institutions complying with Chapter 337,
76
Statistical Summary of-Eugunical Stbrilization
Laws of Nebraska, 1915, entitled 'An Act to
authorize the sterilization of feeble-minded
and insane inmates of state institutions, in
certain cases, and to provide for the appoint-
ment of a commission, and to define their
powers and duties in connection therewith.'
. "There have been ten meetings of the
Board of Examiners of Defectives held dur-
ing the past two years. Meetings are called
by the chairman on request of the superin-
tendents of the different state hospitals.
Appended to this report will be found five
tables; Table I, referring to the Ingleside
Hospital for the Insane; Table II, the Ne-
braska Hospital for the Insane; Table III,
Hospital for the Insane of Nebraska; Table
IV, Nebraska Institution for Feeble-Minded
Youth; Table V, combined report of the
action of the Board as it pertains to all of
the institutions. There was a total of 835
patients examined in four state institutions.
The institutions were given authority to
sterilize 77 patients before parole or dis-
charge be granted, 43 patients have been
sterilized, the remaining 34 patients still re-
main residents of the institutions, they being
as yet unable mentally to take their former
place in society.
"Section 1 of the law;; governing this
Board reads as follows: 'Sterilization of
feeble-minded or insane inmates of state
institutions. — Hereafter no feeble-minded or
insane inmate, physically capable of bearing
or begetting offspring, shall be paroled or
discharged from the institution for the
feeble-minded, or the hospital for the insane,
nor paroled from the penitentiary reforma-
tory, industrial home, industrial schools or
other such state institutions, except as here-
inafter provided, or by order of a court of
competent jurisdiction.'
"It will be noted that the Board has riot
been called upon to examine any patients
from the State Penitentiary, the Nebraska
Industrial Home, State Industrial School,
nor the Girls' Industrial School. All patients
examined were from the three hospitals for
the insane and the institution for feeble-
minded.
"The Board has adopted and followed a
conservative policy in dealing with appli-
cants for sterilization. No controversies
have been invited nor entered into, preju-
dices in most cases have been overcome and
religious scruples have always been re-
spected. No patients have been sterilized
without full consent of the relatives and the
consent of the patient himself. Authority
to sterilize has not been given in any case
until after careful consideration of the per-
sonal and family history of the patient and
the Board convinced that the patient was
capable of bearing or begetting offspring
and that the offspring 'would inherit a ten-
dency to feeble-mindedness, insanity, or
degeneracy, and that such children would
probably become a social menace and that
procreation by such inmate would be harm-
ful to society.' In every case operated upon,
recovery was prompt and complete.
"Respectfully submitted,
"W. S. FAST. Chairman.
"D. G. GRIFFITHS, Secretary.
"G. E. CHARLTON.
"J. D. CASE.
"B. A. FINKLE."
(c) Statistical Report of Board of Exam-
iners of Defectives:
INGLESIDE HOSPITAL FOR THE INSANE, INGLESIDE, NEBRASKA
Table of Patients Coming Under the Observation of the Board of Examiners of
Defectives for the Biennium Ending November 30, 1918.
TABLE I.
M F T
Number examined 50 44 94
Authority given for sterilization before parole
or discharge 12 4 16
Authority given to parole or discharge with-
out sterilization 34 30 54
Action deferred 14 10 34
Total 50 44 94
Sterilized according to law 13 1 13
-JM^mM^
Statistical Summary of Eugenicai, Sterilization 77
NEBRASKA HOSPITAL FOR THE INSANE, LINCOLN, NEBRASKA
Table of Patients Coming Under the Observation of the Board of Examiners of
Defectives for the Biennium Ending November 30, 1918.
TABLE II.
M F T
Number examined 36 4(; gg
Authority given for sterilization before parole
or discharge 15 lo ai
Authority given to parole or discharge with-
out sterilization 13 33 35
Action deferred 8 % ly
Total 36 4G 82
* * * * t
Sterilized acording to law 4 10 14
HOSPITAL FOR THE INSANE OF NEBRASKA, NORFOLK, NEBRASKA
Table of Patients Coming Under the Observation of the Board of Examiners of
Defectives for the Biennium Ending November 30, 1918.
TABLE III.
M F T
Number examined 35 31 56
Authority given for sterilization before parole
or discharge 23 4 27
Authority given to parole or discharge with-
out .".terilization 5 16 21
Action deferred 7 1 8
Total 35 21 56
't* ^ "1^ T* 'K
Sterilized according to law 10 3 13
NEBRASKA INSTITUTION FOR FEEBLE-MINDED YOUTH, BEATRICE,
NEBRASKA
Table of Patients Coming Under the Observation of the Board of Examiners of
Defectives for the Biennium Ending November 30, 1918.
TABLE IV.
M F T
Number examined 2 1 3
Authority given for sterilization before parole
or discharge 2 1 3
Authority given to parole or discharge with-
out sterilization
Action deferred
Total 3 1 3
Sterilized according to law 3 1 3
78
Statistical Summary of Eugenicai, Sterilization
Combined Tables of Patients from the Ingleside Hospital for the Insane, Nebraska
Hospital for the Insane, Hospital for the. Insane of Nebraska, and the
Nebraska Institution for Feeble-Minded Youth, Coming under the
Observation of the Board of Examiners of Defectives for the Biennium
Ending November 30, 1918.
TABLE V.
M F T
Number examined 133 112 235
Authority given for sterilization before parole
or discharge 53 25 77
Authority given to parole or discharge with-
out sterilization 42 68 110
Action deferred 29 19 48
Total 123 112' 235
*****
Sterilized according to law 38 15 4:i
Institutional Reports. 3. State Hospital, Ingleside. W. S. Fast,
In response to inquiries the following Superintendent,
information and opinions were given: "All patients of child-bearing age, other-
1. Nebraska Institution for Feeble-Minded wise eligible for parole or discharge, are
Youth, Beatrice. passed upon by the Sterilization Board.
(a) Dr. D. G. Griffiths, Superintendent: There have been no changes in this law
"The Nebraska sterilization law applies which has been in effect for a period of five
only to inmates of state institutions, and years, nor have I any changes to suggest,
only then when they are about to be dis- The law should always be administered by
charged during the child-bearing period. As conservative physicians. Personal and fam-
far as it goes the law has been very satis- i'y histories, individual characteristics, etc.,
factory in our state. The operations under etc., should be taken into consideration in
it are limited in number, and have been determining whether or not patients should
entered into at all times with a great deal of be sterilized." February, 1921.
precaution. I think the act was not passed 4 Nebraska Hospital for the Insane,
on a medical basis, but for its eugenical. Lincoln, (a) Dr. Lawrence B. Pilsbury,
value." April, 1918. Superintendent.
(b) J. A. Buford, M. D Assistant Super- ,,y^^ ^jj, ^^^.^^ ^^ j,^^ ^^^^,^^^j ^^p^^^
intendent: "The State of Nebraska has a ^j^^^ ^^ j^^^^ sterilized in this institution
Board for exammation of mental defectives. ^^^^^ ^^^^ ^^^ ^j^ ^^^^^„ ^„^^^ ^^^ ^^^^^^^
Before being discharged from this institu- ^j ^g^g. ^^^ ^^ ^j^^ ^^^^^ ^^.^^ ^ ^.^^ ^^^^^
tion, patients must appear before this Board, ;^^^^j,^ ^„j ^j,^ ^^^^^ p^^i^^^^ ^„ ^^.^^
and upon their recommendation, they are •
*^ insane,
ordered sterilized and discharged. This „_ , ^, -i .■ u » i
... ^ ^, cj. ^ n ^<- J- Tr One of them was an epileptic, but 1
work IS done at the State Orthopedic Hos- ,, , , ,. , • , , ■, ,■
. , , . , .. , , suppose that when a patient is both epileptic
pital, Lincoln, Nebraska. j . , , , , ^^ .
and insane you would have such patient
"Our suggestions have been embodied in classified as insane. The analytic table does
certain bills mtroduced in the Legislature ^^^ ^^^^ ^^ p^^^j^^ f^^ j,,i^ contingency, nor
by request of the Nebraska Children s Code ^oes it provide for hysterectomy, pan-
Commission. hysterectomy nor the removal of tube on
"I am heartily in favor of it and urge the ^^g jj^g ^^^ ^vary on the other, although
adoption of some such measure under proper ^i, „f ^^^3^ procedures are- sterilizing oper-
supervision and regulation." January, 1921. ations
2. Hospital for Insane, Norfolk. G. E. "Of the men sterilized, one, H. C, was a
Charlton, Superintendent. high grade imbecile with a record of repeated
"I would do away with that part of the thefts. He left the hospital in good physical
sterilization statute requiring the consent of condition and I have heard nothing of him
the nearest relative." January, 1981. since. Another, U. T., was a case of manic-
Statistical Summary of Eugenical Steriwzation
79
In response to inquiry, Dr. Pilsbury stated
that, in his opinion, the medical value of the
statute was probably very little, but that,
theoretically, the eugenical value should be
considerable, so far as reducing the incidence
of insanity and feeble-mindedness is con-
cerned; but that custodial segregation would,
in time, of course, bring about the same
result. March, 1918.
(b) J. D. Case, Superintendent: "Hered-
ity, age, civil condition, physical condition all
are taken into consideration in cases passed
upon by the Board of Examiners of Defec-
tives, consisting of five specialists in nervous
and mental diseases.
"Eugenical sterilization is very important
if carefully applied in cases which are care-
fully selected by a competent board."
January, 1921.
9. Industrial Farm for Women, York.
Dr. Alma J. Chapman, Superintendent.
"When Hazel Scott was ready to be
paroled she came before the Sterilization
Board and they recommended sterilization.
This was done at the Orthopedic Hospital,
Lincoln, Nebraska. She had had a child at
the Nebraska Industrial Home at Milford,
Nebraska, and has spent most of her life in
institutions. So we had her examined before
the Sterilization Board. Her sister signed
a paper giving her consent.
"I am in favor of sterilization, especially
for patients paroled from insane asylums."
January, 1921.
8. NEVADA.
The statute dates from 1911. Present of the criminal courts, subject to the act, but
status (January 1, 1922): Inoperative; de- performed no eugenical sterilizing operations
clared unconstitutional by Federal Court, under it.
1918. One (1) state institution was, by order
depressive insanity and had apparently
entirely recovered from his attack when he
left the hospital recently. He has a history
of repeated attacks of insanity, and the steril-
izing operation seemed to have no influence
one way or the other on his recovery. The
other male patient, W. S., had also a' history
of repeated manic-depressive attacks and ran
away from the hospital recently without full
recovery. The operation had no effect on
his mental condition.
"Of the women, one, E. B., was a case of
dementia praecox on a defective basis. Both
tubes were removed and the patient is still
in the hospital and shows slight mental im-
provement. Another, K. A., also a dementia-
praecox patient, had the right tube and left
ovary removed. She left the hospital soon
afterward and her present condition is un-
known.
"Another woman, G. D., sister of the pre-
ceding, a manic-depressive case, had both
tubes removed and left the hospital some-
what improved mentally. Another, A. B.,
diagnosed as dementia praecox, had both
tubes removed and is now in the hospital in
about the same condition.
"P. E., a case of manic-depressive insanitj-.
had both tubes resected, but she had practi-
cally recovered from her attack before the
operation was performed. She left the hos-
pital later and is still away on parole.
"A sixth woman, G. K., is an insane
epileptic and in her case a hysterectomy
was performed. She is still in the hospital in
an unimproved condition."
Vasectomy
1. State Penitentiary. Carson City 0
Castration
0
Salpingectomy Ovariotomy
0 0
Ttatal
0
Total to January- 1. 1921... 0
Notes on the Enforcement of the Eugenical
Sterilization Law in Nevada.
In this state eugenical sterilization existed
solely as a punishment and its first attempted
use resulted in the federal courts declaring
it "cruel and unusual."
In response to inquiries the following
information and opinions were given:
0
0
1. Nevada State Penitentiary, Carson City.
(a) R. B. Henrichs, Warden.
"There is a Sterilization Law in this state,
but as the only sentence imposed was never
carried out, but was taken to the Supreme
Court and is still pending, I am not in a
position to make a report." January, 1918.
(b) "I do not believe in sterilization."
January, 1921.
80
Statisticai, Summary of Eugbnical Sterilization
9. NEW JERSEY.
The statute dates from 1911. Present institutions of the same types, were subject
status (January 1, 1922): Declared uncon- to the act; however, no eugenical sterilizing
stitutional by state courts, 1913. Ten (10) operations were performed under it. The
state institutions, also the several county ten state institutions are as follows:
MALES FEMALES
Vasectomy Castration Salpingectomy Ovariotomy Total
1. State Prison, Trenton 0 0 0 0 0
2. Reformatory, Rahway 0 0 0 0 0
3. Home for Girls, Trenton 0 0 0 0 0
4. Home for Boys, Jamesburg. . . 0 0 0 0 0
5. State Hospital, Trenton 0 0 0 0 0
6. State Hospital, Morris Plains. 0 0 0 0 0
7. State Village for Epileptics,
Skillman 0 0 0 0 0
8. Colony for Feeble - Minded
Males, New Lisbon 0 0 0 0 0
9. Reformatory for Women,
• Clinton 0 0 0 0 0
10. Institution for Feeble-Minded •
Women, Vineland 0 0 ■ 0 0 0
Total to January 1, 1921... 0
Notes on the Enforcement of the Eugenical
Sterilization Law in New Jersey.^
The first attempted use of the statute (by
the State Village for Epileptics at Skillman)'
in this state resulted in a test case before
the courts which declared it to be class
legislation so far as epileptics are concerned.
This adverse decision, while not specifically
applying to subject institutions for other
types of the socially inadequate, resulted in
their declining to make use of the statute for
fear of similar prevention by the courts so
that this law has always been a dead letter.
In response to inquiries the following
information and opinions were given:
3. State Home for Girls, Trenton. Eliza-
beth V. H. Mansell, Superintendent.
"One of the first acts of Governor Wilson
was to sign the sterilization bill, but it was
immediately afterward pronounced unconsti-
tutional." January, 1918.
4. Home for Boys, Jamesburg. Rudolph
W. Remser, Resident Physician.
"I believe with Dr. August Hoch that this,
in general, is a matter of education of the
public conscience in regard to the great re-
sponsibility of marriage and parenthood
rather than legislation, especially in juveniles
in whom the percentage of definite psychoses
is so small." January, 1921.
5. State Hospital, Trenton.
Dr. Henry A. Cotton, Superintendent,
reports that no operations were performed
under this law, which was declared
unconstitutional but that, in his opinion,
" Institutions 1, 2, 7 and 9 did not supply
historical comment.
0
0
both the medical and eugenical values of
such a statute would be good. February,
1918.
6. State Hospital, Morris Plains, (a) Dr.
Britton D. Evans, Medical Director.
"I have to advise you that the Sterilization
Statute was declared unconstitutional in this
State, and as no patients have ever been re-
ported upon, I can give you no data on the
subject." February, 1918.
(b) Marcus A. Curry, Superintendent.
"I am of the opinion that eugenical steriliza-
tion properly safeguarded and supervised
would be a valuable agent in decreasing the
supply of the socially unfit.
"If the present statute had not been de-
clared unconstitutional it might have been
practical and effective, but without actual
testing it is impossible to state." January,
1921.
8. Colony for Feebl«-Minded Males, New
Lisbon.
J. Frank Macomber, Superintendent, gave
it as his opinion that the principal
value of the sterilization law was experi-
mental; that it was the proper thing for
feeble-minded males, but its value was very
questionable when applied to females. Jan-
uary, 1918.
10. Institution for Feeble-Minded Women,
Vineland. Geo. B. Thorn, Superin-
tendent.
"We have not taken advantage of the
Sterilization Law which is in effect in this
state.
fcjTATisTiCAi, Summary oP EugUnicai, Sti^riuzation 81
"We feel it would be a wonderful help in was declared unconstitutional. The law
the administration of this institution were affecting this institution is not the same, but
we able to avail ourselves of this statute, as we have not made a test case as yet. We
there has been some difference of opinion as are having considerable discussion in New
to the legality of same. Jersey as to how to have this law amended
"A test case had been tried in one of the so that it will be constitutional." January,
courts where a patient was operated on, at 1931.
Skillman, N. J., and from their standpoint,
10. NEW YORK.
The statute dates from 1913. Present (30) state institutions were subject to the
status (January 1, 1923) : Repealed 1930, act before its repeal; they performed eugen-
after having been declared unconstitutional ical sterilizing operations as follows:
by the lower state courts in 1918. Thirty
MALES PEMAIiES '
Vasectomy Castiation Salplneoctomy Orariotomy Total
1. State Prison, Auburn 10 0 0 1
3. Clinton State Prison, Danne-
mora 0 0 0 0 0
3. Sing Sing Prison, Ossining... 0 0 0 0 0
4. Great Meadow Prison, Com-
stock 0 0 0 0 0
5. Farm for Boys, Valatie 0 0 0 0 0
6. Reformatory, Elmira 0 0 0 0 0
7. Eastern New York Reforma-
tory, Napanoch 0 0 0 0 0
8. Agricultural and Industrial
School, Industry 0 0 0 0. 0
9. Training School for Girls,
Hudson 0 0 0 0 0
10. Western House of Refuge for
Women, Albion 0 0 0 0 0
11. Reformatory for Women, Bed-
ford Hills 0 0 0 0 0
13. Institution for Feeble-Mindcd
Children, Syracuse 0 0 0 0 0
13. Newark State School, Newark 0 0 0 0 0
14. Custodial Asylum, Rome 0 0 0 0 0
15. Craig Colony for Epileptics,
Sonyea 0 0 0 0 0
36. Letchworth Village, Thiells.. 0 0 0 0 0
17. Matteawan State Hospital,
• Beacon 0 0 0 0 0
18. State Hospital, Utica 0 0 0 0 0
19. State Hospital, Willard 0 0 0 0 0
30. Hudson River State Hospital,
Poughkeepsie 0 0 0 0 0
31. State Hospital, Middletown. . . 0 0 .0 0 0
22. State Hospital, Buffalo 0 0 13 0 13
23. State Hospital, Binghamton.. 0 0 0 0 0
24. St. Lawrence State Hospital,
Ogdensburg 0 0 0 0 0
25. State Hospital, Rochester.... 0 0 0 0 0
26. Gowanda State Hospital, Collins 0 0 34 5 39
27. State Hospital, Kings Park... 0 0 0 0 0
28. State Hospital, Central Islip.. 0 0 0 «■ 0 0
29. Long Island State Hospital,
Brooklyn '. • . • 0 0 0 0 0
30. Manhattan State Hospital,
Ward's Island, N. Y _0_ 0 0 0 0
Total to January 1, 1921... 10 36 5 43
82
Statisticai, Summary of Eugenical Sterilization
Notes on the Enforcement of the Eugenical
Sterilization Law in New York."
The State of New York in its Eugenical
Sterilization Statute provided for a "Board
of Examiners of Feeble-Minded Criminals
and other Defectives," and appropriated
$29,835.00 for the execution of the statute.
The money appears to have been spent large-
ly for fees and traveling expenses,' and no
printed report was ever issued, nor, from the
detailed reports of institutions, did the Board
of Examiners ever attempt any serious study
or accomplish anything other than to bring
a test case before the State courts. It
appears also that the law was originally
passed, not at the instance of persons inter-
ested in eugenics, but for the primary
purpose of creating a commission for "de-
serving friends." The statute was copied
almost bodily from the New Jersey law, and
no effort was made to improve or adapt it.
In short, the history of this law in New
York State is a record of politics, incompe-
tency and discredit. It has set back eugen-
ical progress among the state's institutions
more than ten years.
The two institutions in this state which
practice eugenical sterilization, namely, the
State Hospitals at Buffalo and at Collins,
operate under their own responsibility. They
did not attempt to use the sterilization
statute when it was in force.
(a) Excerpts from correspondence of
Hon. Francis M. Hugo, Secretary of State
for New York, and from that of Dr. Lemon
Thomson, Member of the Board of Exam-
iners of Feeble-Minded 'Criminals and other
Defectives, together with a Statement of
Appropriations and Expenditures of said
Board furnished by Comptroller Eugene M.
Travis:
Hon. Francis M. Hugo, Secretary of State.
"We give below the names, addresses, dates
of appointment, expirations df terms, etc.,
of persons who were appointed on the Board
of Examiners of Feeble-Minded Criminals
and other Defectives, which is the Commis-
sion you referred to and which was estab-
lished by 'Chapter 445 of the Laws of 1912.'
» Institutions 3, 4, B, 8 17, 18, 19, 24, 25 and
29 did not supply historical comment.
' See p. 83 "Comptroller's Report," and p. 189
"Costs and Appropriations."
"Charles H. Andrews, M. D., of Buffalo,
N. Y., appointed August 36, 1913; no expira-
tion of term given.
"Lemon Thomson, M. D., of Glens Falls,
N. Y., appointed August 86, 1913; no expira-
tion of term given.
"Charles C. Duryee, M. D., of Schenectady,
N. Y., appointed August 26, 1913; no expira-
tion of term given.
"John V. Hennessy, of Albany, N. Y.,
appointed March 9, 1914, for a term to expire
August 36, 1917; Vice Duryee, resigned.
"William J. Wansboro, M. D., of Albany,
N. Y., appointed July 32, 1914; no expiration
of term given; to succeed John V. Hennessy,
M. D., deceased.
"According to our records the present
Members of the Board are as follows:
"Charles H. Andrews, M. D., of Buffalo,
N. Y.
"Lemon Thomson, M. D., of Glens Falls,
N. Y.
"William J. Wansboro, M. D., of Albany,
N. Y." February, 1918.
Dr. Lemon Thomson, dens Falls, N. Y.
"I regret to state that our work on the
board of examinations of feeble-minded, etc.,
resulted in a total fizzle. We spent more
time with the Legislature to get an appro-
priation to carry on the work than we were
spending on the work itself. Finally we
got a case before the court for a legal deci-
sion, and it is now more than two years
since the closing of the case. Attorneys
failed to put in their briefs, consequently
we had no hope of getting a decision. A
little more than a year ago, having become
disgusted with the whole affair, I wrote to
the Secretary of the Governor as to whether
Governor Whitman favored further investi-
gation in that direction. Not hearing from
the Governor's Secretary, I threw up the
whole matter in disgust, as I did not feel
like spending my money on work in which
we could not get a decision. It is a disgrace
to the State that they have taken no amount
of interest in the same.
"As to reports I do not know where to put
my hand on them, but if they would be of
any service to you, I will gladly look up
same and forward them to you, but we did
not get so far as to have any printed re-
ports." February, 1918.
Statistical Summary of Eugenicai, Stsriuzation
83
2i
rt* o O
§
W
o
o
g
t-
Q
CO
O
CO
to
o
T-1
(M
o
(M
o
Tt
«o
00
g
O
(M
W3
(M
d
<o
m
O O CD
W
iH
w
Oi
to
w
w
c
r-
h-
rH
O
t-
CO
CO
tH
CO
Ifi
O (N
to
rH
»o
*«-
Tt<
■^
■ Th
■^
»r
>o
vn
wo
w:)
Cf>
CO
r-l
T-t
iH
iH
tH
rH
rt
OS
Oi
Oi
CJ
Ci
OS OS
Oi
Ci
Oi
Ol
PQ
rH'
■H
1-1
»H
iH
T-l iH
tH
^
r-f
rH
1-H
Oi
-H"r-i 1-1 1-1 iHi-l Ti tH t-i i-lrHrH r-(
r-< tH iH ri i-< r-T tH i-T r-T i-l' r4 tH* t-h r-T tH
OOO O O O OO O O C O^^ h^
^
s
CO •*
iH rH
C^ OS
"* in
i-C iH
OS O
o o
t- CO
Oi 0-.
>ni o CO »r; C". o CO CO
COt-THWt-t^QCTji
r-i O CO -f (N iH
CT. C-
u
O Tt< O
O CO O
d CO d
§CO O
O
d
o
o
o
mm
<±J CO
O CO
a
en
a
a &
mm
o o
i> CO
CO CO
(/il— ,
) (N O « O -!t*^ O
04 d CO in CD d CD cd
rH CO o m CI cO
w in co"
o
o
O O O O Q Q p
o o o o 5 o o
O o o o
o o o o
§§
<6 d> ci d> \a S a
o o o o w © o
O « W CO iH CO o
S d) <6 Q
o o o o
in in T*< CO
§g
CO 04
CO iH rH
-* CO
rH rH
rtn' --i^' -**" TtT Ttn" -rtn' -+'
1-1 T-l T-( i-H rH 1-1 i-f
CI O Ci Oi OS O- Ci
iH iH rH tH rH rH rH
in m in in"
rH T-H r-< rH
OJ Ol OS OS
rH 1-1 iH rH
in in
O- Ci
rH rH
<S i::^ <o c^ <S ci <S'
CO (M CO N CO (M CO
in >n m in »n in in
in co" m" co'
OJ OT (M C-l
i> C- t- t-
»n co"
m
O in
O CD
OOO
O O rH
00
CO
5,000
312
O
in
CO
OS
rH
Ol
o
■ X >< m O
ww.a „
C CO O t- O to CD
O W O W O -^ OS
O CO »f3 CD O 50 !D
CD Ci W 04 t- C- -^
CO O m W CD
in CO
(A CO
'>' "^ M
u 0.2
'S'S u
^ c
a
be
X cn
Xt cci
Wt«OU O
Pi
a
W
O
° ■ -w
a
G I' c S
O PiH
OT he
SESS
CE-Pi
c/j l-i Ch tn cd
(D cti aJ {U
en— am"
C g, >< C J^
a|w St
W cn.Sf^W V
5 > y s?.
" rt > " SS, u
liE-^SiE^o.
C m
O a;
rt5
>>
:3
a-?..
t— 1
- g
,— — 1—
P3
0 c c
HHtr
84
Statisticai, Summary of Eugenicai< SteriuzAion
(b) National Christian League for Pro-
motion of Purity (New York). Elizabeth
B. Grannis, President, March 9, 1931, writes:
"Some people should be segregated, but
not more than one-quarter or one-third of
those who now occupy public institutions,
and are supported by public funds. If the
economic phase of this question could be
properly understood a multitude of sensible
people would come to the front in behalf of
sterilization.
"We have had a number of cases that
ought to be known to every intelligent indi-
vidual. One young man whom I took out
of the idiot asylum on Randall's Island, pro-
nounced incurable (there was nothing the
matter with him but silly, contemptible
parentage who didn't know enough to man-
age him) — he was given to self-indulgence,
and pronounced by the boy doctors, incur-
able. In a few weeks after I took him out.
he was sterilized, and in a very few weeks
becan^e so self-responsible and self-respect-
ing, no longer a cowered, machine-made
nervous wreck that he had been, * * * we
obtained a position for him with the Rem-
ington Typewriter Co.,, at $3.50 per week.
His salary was raised every few weeks until
within a very few months he was getting
seven dollars a week. He is now a full-
fledged United States soldier, with never a
symptom of any feeble-mindedness having
occurred to any federal authority who ex-
amined him. Another young man who had
been in the Binghamton Asylum five years
is now in camp with excellent record, having
been pronounced incurable by the young
doctors, and in my repeated correspondence
it was stated by the superintendent that it
was not probable that he could ever become
self-supporting. The first position he
obtained was as elevator man with ,$40.00 a
month income for his service. Today both
of these young men are attending night
school, but both in camp, displaying whole-
some ambition, with promises to fit them-
selves for business and to be alw.iys a credit
to those who helped in securing their dis-
charge. The one who was in five years
attended one of our meetings in which he
made an address, stating, 'Today I am a free
man, walking the streets like any other
citizen instead of being behind bars and
locked in, with no freedom of individual
action.'
"I could mention a case of a young woman
sent home from every boarding school for
improper conduct. Sterilization settled her,
and prevented serious distress and mis-
fortune."
(c) In response to inquiries the following
information and opinions were given:
1. Auburn State Prison, Auburn, (a)
Dr. Frank L. Heacox, Physician. "The
State Commission made a special study of a
few cases, but no recommendations were
made as to the cases investigated. One oper-
ation of double vasectomy was performed
on one patient at his own and his family's
request. The patient was a youth twenty
years of age, who was suffering from tuber-
cular testicles." Dr. Heacox stated that, in
his opinion, the medical value of the statute
was very little, but that eugenically it was
invaluable. March, 1918.
(b) "Our one case of eugenical steriliza-
tion was a voluntary one." January, 1921.
2. Clinton State Prison, Dannemora. Dr.
John R. Ross, Medical Superintendent.
"There is no doubt in my mind that this
operation, if carried out extensively among
the insane, feeble-minded and certain of the
criminal type, would be of great eugenical
value. I feel, however, that it would be
impossible to perform this operation to any
extent until there has been an educational
campaign among the public." February,
1918.
6. New York State Reformatory, Elmira.
Frank E. Christian, Superintendent
(a) "Several cases were examined by the
Commission, but nothing more accom-
plished. Medically the statute was excellent
in selected cases, and eugenically it was a
good measure." January, 1918.
(b) "The New York Sterilization Law,
now repealed, was never popular enough to
be enforced. A number of our segregable
defective delinquents ought to come under
the jurisdiction of a practical sterilization
law. We believe it to be practical in cases
of extreme degeneracy." January, 1921.
7. Eastern New York Reformatory, Na-
panoch. (a) Dr. W. N. Thayer, Jr., Physi-
cian, reported that no operations had been
performed there, that the institution had
never been visited by the Committee; that
he would not care to offer an opinion con-
cerning the medical value of the statute, but
that its eugenical value was good, if applied
to cases of feeble-mindedness and recurrent
insanity. Dr. Thayer did not consider crime
hereditary. January, 1918.
(b) "Eugenical sterilization is not neces-
sary in cases requiring permanent custody
Statisticai< Summary of Eugunicai, Steriwzation
85
but it should be done in cases of feeble-
minded individuals not in custody." Janu-
ary, 1921.
9. Training School for Girls, Hudson.
Dr. Hortense V. Bruce, Superintendent.
"We have never attempted to do anything
under the authority of the Sterilization Law
as we understood that the matter would
have to come into the courts. In fact, the
Commissioners sought to have us select a
patient only in order to have a test case to
bring into court. Therefore, this institution
has nothing but a negative report.'' Febru-
ary, 1918.
10. Western House of Kefuge for
Women, Albion. Dr. D. E. Ollswang,
Physician. "I think that the Sterilization
Law is excellent, and certainly ought to be
carried out in all institutions of this nature.
It would greatly decrease the number of
feeble-minded and inferior children born."
January, 1918.
11. Reformatory for Women, Bedford
HUIs.
(a) Mary C. Conant, Physician. While
four cases were reported. Dr. Conant, resi-
dent physician, states that "'none of the four
cases were primarily for sterilization. In the
first case tubes were diseased, and the other
three cases were Caesarian sections for con-
tracted pelves. Under the circumstances
sterilization seemed desirable." Doubtless
these operations would have been performed
•under due course of professional practice,
regardless of the so-called Sterilization Law.
Superintendent Helen A. Cobb writes:
"My understanding of the Sterilization Law
in this state is that it has not got beyond
the statute books in Albany. No operations
primarily for this purpose have been per-
formed in this institution." January, 1918.
(b) O. M. Grover, M. D., Resident Physi-
cian. "I think all mental defectives who are
custodial charges should be sterilized."
January, 1921.
12. (a) Institution for Feeble-Minded
Children, Syracuse. Dr. O. H. Cobb, Super-
intendent. "The medical and eugenical
values of the .sterilization statute are nil."
January, 1918.
(b) "We have done none of this at this
institution and from our viewpoint this pro-
cedure is nott practicable in New ;York
State at this time." January, 1921.
13. Newark State School, Newark. Dr.
Ethan A. Nevin, Superintendent. "The State
Commission made some preliminary investi-
gations but no cases from this institution
were recommended for operation. I under-
stand, through the failure of the legislature
to provide funds for this commission, that it
has practically become extinct. I have not
had sufficient evidence presented to me to
convince me that this is a wise method of
dealing with this proposition." February,
1918.
14. Custodial Asylum, Rome. Dr.
Charles Bernstein, Superintendent, from
whose institution the test case for the New
York statute arose, reported that there had
been no operations under the law in his
institution; that he could not in the ordinary
course of professional practice perform any
operation under this law that would be for-
bidden or illegal without it; that, in his
opinion, there was no medical value in the
statute; and that, instead of being of eugen-
ical value, the statute was a eugenical hin-
drance." January, 1918.
15. Craig Colony for Epileptics, Sonyea.
Dr. Wm. T. Shanahan, Superintendent. "The
Commission visited the Colony, but nothing
was done in the way of attempting to enforce
the Act." Dr. Shanahan reported that, in
his opinion, the statute was of doubtful
medical and eugenical values. January, 1918.
16. Letchworth Village, Thiells. Dr.
Charles S. Little, Superintendent. "The
Sterilization Law in this state has not been
put in practice, and I doubt if it ever will
be, although I do not know of any good
reason why it should not be done, if public
sentiment would be favorable to it."
February, 1918.
20. Hudson River State Hospital, Pough-
keepsie. Dr. Walter G. Ryon, Superin-
tendent. "No cases have been sterilized on
account of the prejudice existing against the
operation on the part of patients and their
relatives. The hospital's policy is not to
antagonize them. Some have been given
the alternative)' in seeking discharge, but
have not accepted it." Superintendent Ryon
gave it as his opinion that if an operation is
for purely sterilizing purposes, he could
under the law perform operations which
would be illegal without it. In answer to
inquiry concerning the medical and eugen-
ical values of the statute he wrote: "The
eugenical value is great. The medical value
consists in increasing the propriety, and
therefore, the frequency of paroling and dis-
charging convalescent insane." February,
1918.
86
Statistical Summary of Eugbnical Sterilization
31. State Hospital, Middletown. Dr.
M. C. Ashley, Superintendent, reported that
while they had not performed any opera-
tions in his hospital because funds had not
been provided for the purpose, still, in his
opinion, both the medical and eugenical pos-
sibilities of the statute were excellent. Janu-
ary, 1918.
23. State Hospital, Buffalo.
(a) Dr. Arthur W. Kurd, Superintend-
ent, in answer to inquiries, reported that he
was doubtful whether the law, as it stood
before tested in the courts, was applicable
to inmates of the hospitals for the insane.
He stated also that in reference to the medi-
cal value to the institution: "That it may
be of a great deal of value in selected cases,
as child-bearing, for instance, brings on re-
current attacks of insanity. Eugenically the
statute is of much value in preventing the
propagation of defectives."
"* * * Since 1912 six sterilizations
have been done in this institution on women
to produce sterility on account of the mental
condition, which made it unwise that the
patients should have any more children, and
in two instances where, the mental condition
was in unmarried insane women and was
accompanied by immoral tendencies. In
each one of the cases we obtained the written
consent of the relatives, which was filed in
the case before such an operation was under-
taken. We have always felt that indiscrimi-
nate sterilization among the insane was not
indicated, but believe very . strongly in it,
and think it is of very great value in de-
creasing the number of people who would
be born with a bad heredity, and also in
saving the strength of women, for instance:
If continued child-bearing would weaken
the system, and in that way increase the
tendency to mental breakdown." February,
1918.
(b) F. W. Parsons, Superintendent.
"Thefe have not been any untoward mental
or physical effects resulting from our cases
of salpingectomy, as the menstruation has
continued uninterrupted. Before operating
we obtain and file the written consent of
husband, parent or guardian. Several de-
fectives of bad moral tendencies were steril-
ized before they were allowed to. go on
parole, also a number of insane women with
good intelligence and who had repeated at-
tacks of insanity, during pregnancy or the
puerperium.
"The sterilization act is not in force in
New York State. The hospital assumes the
responsibility.'' January, 1921.
23. Binghampton State Hospital, Bing-
hampton. Dr. Charles G. Wagner, Medical
Superintendent.
(a) "We have .never performed any
operations for sterilization and do not con-
template any such operations. You, of
course, appreciate that the State Hospital
Commission with headquarters at Albany,
N. Y., has charge of all of the State hospitals
in New York State and we have received
no instructions from the Commission re-
garding the application of eugenical steriliza-
tion statute to which you refer." February,
1918.
(b) "Approve of the theory but .the prac-
tice has not been applied in this state."
January, 1921.
26. Gowanda State Hospital, Collins. Dr.
C. A. Potter, Superintendent.
(a) In answer to inquiry concerning the
medical and eugenical values of the statute,
Dr. Potter replied: "If properly amended,
the law would be of very great value in pre-
venting recurrence of attacks of insanity,
one of our cases has proven this conclusively.
If enforced, after amendment, its eugenical
value would be greater than any law of
recent years which applies to institutions."
February, 1918.
(b) "We note that several of our patients
who have been sterilized have had no mental
breakdown since the operation and have
been able to fill their places in the house-
hold since they have not been exposed to
pregnancy. Those cases which became in-
sane on account of child-bearing or have
a bad heredity but who could remain outside
if not exposed to frequent child-bearing, are
selected for sterilization and written consent
is obtained from the husband or legal guard-
ian, or nearest relative, the whole process
and reasons therefor having been thor-
oughly explained.
The public should be shown that insane,
epileptics, feeble-minded and criminals have
no right to procreate, from an economic
standpoint as well as from the point of
eugenics. The insane, feeble-minded, epilep-
tics and criminals of child-beairing age should
be sterilized." January, 1921.
27. State Hospital, Kings Park. Di".
Wm. A. Macy, Superintendent (deceased).
(a) "I am not familiar enough with the
statute to form a positive opinion as to its
medical value, but a statute of this sort is of
Statisticai, Summary o-e Eugenicai, STE;RmzATioN
87
value only when public opinioij^is educated
to an appreciative point. With sufficient
public support behind a law it should prove
of value, especially in paroled or discharged
cases of chronic insanity, mental deficiency
and frequently recurring cases of mental
disorder." January, 1918.
(b) Wm. C. Garvin, Superintendent.
"(1) Sterilization of patients in institutions
seems superfluous. (2) In extramural cases
or in cases about to be paroled or discharged
we have not been able to convince ourselves
that compulsory sterilization would be justi-
fied in the absence of indications for com-
mitment to an institution." January, 1921.
28. State Hospital, Central Islip. Dr.
G. A. Smith, Superintendent, writes that no
surgical .sterilization of inmates has been
performed in his institution, and that he is
uncertain as to whether in the ordinary
course of professional practice he could per-
form any operation under the sterilization
law which would be forbidden or illegal
without it. He responded, also, that in his
opinion the law had no direct medical value.
but that it was of eugenical value in cases of
idiots, imbeciles, mental defectives and
epileptics confined in institutions. March,
1918.
30. Manhattan State Hospital, Ward's
Island, New York City.
(a) Dr. Marcus B. Heyman, Superin-
tendent, stated that, in his opinion, there
was no medical value in the sterilization
statute, but that its eugenical value con-
sisted in the possibility of preventing pro-
creation by constitutionally defective indi-
viduals. February, 1918.
(b) "There has never at any time been
any patients in this hospital sterilized with
a view to eugenics. It is not the policy of
this hospital to make such recommendations.
This question does not seem to be a medical
question but rather a moral and ethical
question.
"I am of the opinion that the New York
State Law authorizing sterilization was re-
pealed, although I am not positive of this.
In any event the law was so cumbersome
that it was impractical." January, 1921.
11. NORTH DAKOTA.
The statute dates from 1913. Present They have performed eugenical sterilizing
status (January 1, 1922): Active. Four operations as follows:
(4) state institutions are subject to the act.
FEMALES -
1. Reform School, Mandan
2. State Penitentiary, Bismarck.,
3. Hospital for Insane, Jamestown
4. Feeble Minded Institution,
Grafton
Vasectomy
0
0
11
Castration
0
0
0
Salpingectomy Orariotomy
0 0
0 Q
7 0
Total
0
0
18
Total to January 1, 1921... 15
Notes of the Enforcement of the Eugenical
Sterilization Law in North Dakota.^
Like Connecticut, North Dakota is acting
conservatively under her sterilization statute.
The further use of it is a matter of educa-
tion and increased interest.
In response to inquiries the following
information and opinions were given:
3. Hospital for Insane, Jamestown.
(a) Dr. Wm. M. Hotchkiss, Superin-
tendent. "I have had no difficulty in secur-
ing the consent of parent or relative when
patient refuses to have the operation per-
formed. The statute is of inestimable eugen-
ical value, because of its possibilities in elimi-
nating, defective hereditary influences. Since
the law has been in effect we have sterilized
thirty males and two females; but we have
1 Institutions 1 and 2 did not supply historical
comment.
0 8 0 23
done much less than contemplated, because
the lack of finance prevented the hiring oi
surgical nurses. We have eleven cases of
females wha are to be operated on when
possible." March, 1918.
(b) A. W. Ogden, M. D., Assistant
Superintendent. "The present State Board
of Administration of North Dakota do not
favor eugenical sterilization and there are
many relatives of patients who oppose it,
and on account of these facts there has been
nothing done along this line for some time."
February, 1921.
4. The Institution for the Feeble-Minded,
Grafton.
(a) Dr. A. R. T. Wylie, Superintendent.
"We have as yet had no operations which
came strictly under this law. One member
of the Medical Board is opposed to such
action from moral standpoints and this has
Statisticai< Summary of Eugenical Sterimzation
somewhat hindered its application here. mental andjjhysical improvement in certain
However, we have performed a number 6f of our cases. In my opinion, in eugenical
operations but with the consent of the value, the law is good." February, 1918.
parents. (b) "The operation of sterilization is
"The law is quite broad, and we think we usually preliminary to discharge. It is our
can perform operations under it which would policy to secure the consent of the parent,
be forbidden otherwise. We approve of such operations in properly
"The law has some medical value in that selected cases." January, 1921.
operations of this sort have resulted in
12. OREGON.
The statute dates from 1917. Present They have performed eugenical sterilizing
status (January 1, 1933): Active. Four operations as follows:
(4) state institutions are subject to the act.
MALES FEMALES
Vasectomy Castration Salpingectomy Ovariotomy Total
1. State Hospital,* Salem 1 33 30 11 74
3. Eastern Oregon State Hospi-
tal, Pendleton 0 33 0 8 40
3. Institution for Feeble-Minded,
Salem 0 0 10 0 10
4. State Penitentiary, Salem 13 0 0 3
Total January 1, 1931 3 66 40 19 127
Notes on the Enforcement of the Eugenical "The law is working satisfactorily in this
Sterilization Law in Oregon. State but we feel that it is too soon to say
Oregon is the only state which has a °i i"st how much value it is going to be."
State Board of Eugenics acting under that February, 1921.
specific title. The law is functioning satis- (a) Excerpts from letters of the State
factorily in all of the institutions to which Board of Eugenics, and State Board of
it applies. Along with California and Ne- Health:
braska, this state is developing her steriliza- State Board of Eugenics: "In answer to
tion policy scientifically and progressively. your inquiry, while this law was passed in
The Oregon law provides for a State 1917 very little has been done as yet and
Board of Eugenics. According to section no report has been issued. At the last meet-
one of the statute, this Board is entirely ing of the Board in December, about twenty
ex-officio, and serves without compensation. persons were ordered sterilized. In two
"The State Board of Eugenics is composed instances the patients appealed from the deci-
of the State Board of Health, the Superin- sion of the Board. Owing to lack of in-
tendents of the Oregon State Hospital, formation we are now at a loss how to
Eastern Oregon State Hospital, and the handle these appealed cases.' Our Attorney-
Institution for the Feeble-Minded, and the General is unable to enlighten us on the
Warden of the State Penitentiary. The subject and if you can supply us with any
Secretary of the Board of Health is also information or advise us where we could
Secretary of the Eugenics Board. The secure such information, we would appre-
present members are; ciate it very much." ROBERT E. L.
Dr. W. B. Morse, President, Salem. HOLT, STATE HEALTH OFFICER.
Dr. C. J. Smith, Vice-President, Portland. March, 1918.
Dr. Andrew C. Smith, Portland. State Board of Health: "Your favor of
Dr. F. M. Brooks, Portland. August 22d received in which you request
Dr. George E. Houck, Roseburg. a recent report of our eugenical sterilization
Dr. J. H. Rosenberg, Prinevillc. law. I regret to inform you that this work
Dr. R. E. Lee Steiner, Salem. has not been published but the facts are
Dr. W. D. McNary, Pendleton. essentially as follows:
Dr. J. N. Smith, Salem. "The Eugenics Board is composed of the
Mr. L. H. Compton, Salem. State Board of Health and the Superintend-
Dr. Frederick D. Strieker, Secretary, ents of the insane asylums and the feeble-
Portland, minded institutions of the State. The Secre-
tary of the Board of Health is also Secretary
•February 14, 1921, twelve cases pending be- _( ,. „ tt. .„.„;-„ d„„,j
fore the State Board of Eugenics. °i '"^ Eugenics Board.
Statistical Summary of Eugeinicai, Sterilization
89
"The Board meets at such intervals as
necessary to examme cases needing steriliza-
tion. At the present time cases which come
under this class are purely institutional, and
resolve themselves into those insane who are
sterilized for their physical well-being, and
the other class of the cyclic type who are
paroled from the insane asylums and those
feeble-minded cases which are paroled or
sent to their homes for vacation periods
or any other reason, and are sterilized prior
to their discharge. Public sentiment in this
way has not been aroused and the work is
moving smoothly.
"We have not decided yet to adopt a
policy of doing widespread sterilization; by
widespread I mean civic cases which come
into court or are apprehended in other ways.
"Upon our compilation of data, we will be
pleased to send you a printed copy." DAVID
N. ROBERG, M. D., STATE HEALTH
OFFICER. September, 1919.
(b) In response to inquiries the follow-
ing information and opinions were given:
1. State Hospital, Salem. Dr. R. E. Lee
Steiner, Superintendent. (a) "Cases are
recommended to the State Board of Eugen-
ics, who meet at the institution to examine
the patients and go over their histories.
The Board then decides what shall be done,
and notifies relatives or guardians concern-
ing their decision. Fifteen days are allowed
for appeal to the Circuit Court.'' Dr. Steiner
stated that he considered the law valuable
as an educational measure, which might lead
to more practical legislation, that its pos-
sible eugenical value was limited as the law
now stands, but that it opens the way to
amendments in the future, which would be
of great eugenical value. All of the 13 males
who were operated upon in his institution
were castrated. In all fcJur female cases the
ovaries were removed. All of the 16 cases,
both males and females, were flagrant mas-
turbators or sex perverts. January, 1918.
(b) "We have been operating for four
years with a great many cases considered
and a great many unsexed and sterilized
with splendid results. For obvious reasons
we are not advertising, but are continuing
to do the best work possible. We will be
able to show a remarkably fine statement
in due course of time." From the Fourth
Biennial Report of the Oregon State Board
of Control for the biennial period ending
September 30, 1920, Dr. Steiner says: "It
will be noticed that thirty operations for
sterilization have been done. All of these
were by the direction of the State Board of
Eugenics. No untoward or unfavorable re-
sults have occurred, and the operations have
been beneficial in all cases. It has been
rather difficult for the public as well as the
patients and relatives to get the right point
of view and appreciate the immediate and
remote benefits to be derived from this
means of preventing the increase of insanity;
but I think there is reason to hope that
their increasing enlightenment will cause
these operations to be resorted to much more
extensively in the future." January, 1921.
(c) L. F. Griffiths, First Assistant Physi-
cian. "We maintain full clinical history of
patients sterilized, together with notes added
a few months after the operation. In carry-
ing out the law prospects are selected by the
staff who submit the patients together with
their clinical history and reasons for sterili-
zation, to the State Board of Eugenics. If
the Board favors the operation they notify
relative or guardian and give time for appeal
which may be taken through the regular
Courts.
"We believe great good can finally be
accomplished but that only such cases should
be selected, regarding which there can be no
doubt of its advisability." January, 1921.
2. Eastern Oregon State Hospital, Pen-
dleton.
(a) Dr. W. D. McNary, Superintendent.
"The application of this law was placed in
the hands of the State Board of Health and
the heads of several state institutions. But
it has been found to be rather impractical
in application, as it was so framed as to
make it difficult to apply to the class o»
cases that it was most desirable to reach.
The consent of relatives or guardian was
required and appeal to the courts provided
for, and after attempting to utilize it in a
few cases at the Oregon State Hospital at
Salem and meeting with protest and annoy-
ing complications it was decided not to do
anything further toward its enforcement."
April, 1918.
(b) "We maintain the usual case, personal
and •family history. Cases are selected by
the superintendent, referred to the State
Board of Eugenics, examined and passed
on by the Board and if favorable, the super-
intendent is ordered to operate. Relatives
are notified previous to operation and have
redress by appeal to courts.
90
Statisticai, Summary of Eugbnical Sterilization
"Eugenical sterilization is a proper, justi- should be
fiable and beneficial procedure." January, Eugenics.
1931.
3. Institution for Feeble-Minded, Salem,
(a) Dr. J. N. Smith, Superintendent,
stated that no operations had been per-
formed in his institution under this Act, and
its medical value was unknown. He held
that its eugenical value was considerable.
January, 1918.
(b) "We have performed ten cases of
eugenical sterilization and have twelve cases
now pending before the State Board of
Eugenics." February, 1921.
4. Oregon State Penitentiary, Salem.
(a) Charles A. Murphy, Warden. In the
Oregon State Penitentiary there was, up to
the time of this report, one case of eugenical
sterilization.
Exhibit A.
(Report of Warden to Board of Eugenics.)
OREGON STATE PENITENTIARY.
Salem, Oregon, June 28, 1917.
In re Chester Vanderpool,
Prisoner No. 6770.
CRIME: Larceny in dwelling.
COUNTY: Multnomah.
SENTENCE: 1 to 7 years.
RECEIVED: February 3, 1913.
Age 23.
"This fellow has served two terms in the
Oregon Reform School; he escaped from
here June 10, 1913, and was returned June
11, 1915; he escaped again January 28, 1917,
and was returned June 7, 1917.
"It appears that the prisoner is the victim
of unfortunate ancestral conditions from
which he can never escape; his mother is
feeble-minded, and his career has been one
of continuous difficulty; sometimes not
criminal in its tendency but always disobe-
dient and unmanageable. I believe his case
13. SOUTH
The statute dates from 1917. Present
status (January 1, 1922) : Inactive. One (1)
state institution is subject to the act, but
considered by the Board of
"CHAS. A. MURPHY, Warden."
Exhibit B.
(Order of Sterilization.)
STATE BOARD OF EUGENICS.
Selling Building.
Portland, Oregon, Jan. 7, 1918.
To Chas. A. Murphy, Warden,
State Penitentiary,
Salem, Oregon.
IN RE CHESTER VANDERPOOL
PRISONER NO. 6770.
At a regular meeting of the Oregon State
Board of Eugenics, held December 20, 1917,
and after full and complete examination of
the above named inmate, it is the decision of
the Board that he be sterilized by vasec-
tomy. This notice constitutes an order to
that effect, said order to be carried out as
provided in Section 9, Chapter 279, Session
Laws of 1917.
(Signed): ROBERT E. L. HOLT,
Secretary.
In reply to the question. What are the
medical and eugenical values of the statute?
Mr. Murphy wrote: "This statute prevents
the bringing into the world of mental de-
fectives by feeble-minded persons and those
of criminal tendencies that are very pro-
nounced. Regarding its eugenical value, the
law has been in operation so short a time
that I am unable to say." March, 1918.
(b) L. H. Compton, Warden. "Cases
for sterilization are referred to the State
Board of Eugenics by the Warden. The
prisoners are then given a hearing before
this Board. The two prisoners recently cas-
trated were released shortly after the opera-
tion and we have had no chance to study
the effects.
"I believe this is the only way to handle
feeble-minded, insane, sexual perverts, etc.
It stops the breed, which is the desired result
although its effect on the individual is usually
very beneficial." January, 1921.
DAKOTA.
eugenical sterilizing operations have not yet
been instituted. The institution subject to
the act is:
1. State Institution for
Minded, Redfield 0
MALES
VaBectomy CastraUon
Fceblc-
FEMALES
Salpingectomy Orarlotomy
Total to January 1, 1921...
Statisticai, Summary of Eugunicai, Sterilization
91
Notes on the Enforcement of the Eugenical
Sterilization Law in South Dakota.
In this state the law applies to one institu-
tion only but the administrative authority of
this institution has never made use of it.
In response to inquiry the following in-
formation and opinion were given:
In South Dakota the sterilization statute is
applicable only to:
1. State Institution for Feeble-Minded,
Redfield. Dr. J. K. Kutnewsky, Superin-
tendent, reported that as yet nothing had
been done about the enforcement of this law,
because there was some question concerning
its constitutionality. He declined to com-
ment upon its eugenical value, and stated
that its medical value was questionable.
May, 1918.
14. WASHINGTON.
The statutes date from 1909. Second stat-
ute, 1921. Present status (January 1, 1932):
Theoretically operative, having been sus-
tained by the State Supreme Court in 1910,
but practically a dead letter. Second statute
not tested by court. Two (2) state institu-
tions, as the executive agents of the criminal
courts, are subject to the first act. They
have performed eugenical sterilizing opera-
tions as follows:
Vasectomy
1. State Penitentiary, Walla Walla 1
2. State Reformatory, Monroe... 0
Total to January 1, 1921... 1
Notes on the Enforcement of the Eugenical
Sterilization Law in Washington.
The sterilization law of 1909 in this state
is like the law of Nevada, for which it served
as a model, purely punitive in its motives and
application, but unlike the case in Nevada,
the Supreme Court of the State of Wash-
ington upheld its constitutionality.
In Washington the first sterilization law
was applicable only to criminal court cases,
and only by implication to the custodial in-
stitutions—the State Penitentiary and the
State Reformatory which are the executive
agents of the court orders.
The second law, that of 1921, is of much
wider scope, applying to inmates of institu-
tions for the feeble minded and insane as
well as of the State Penitentiary and State
Reformatory. It is purely eugenic and
therapeutic in its motives.
In response to inquiry the following
information and opinions were given:
1. Washington State Penitentiary, Walla
Walla.
Superintendent Henry Drum says: "In
the case of Peter Feilen no action has been
taken as yet to carry into effect that pro-
vision of the sentence calling for vasectomy;
the status of the case being that it has been
held in abeyance until the expiration of the
time for appeal to the United States Supreme
Court, which, as I understand it, will be in
September of this year. There are petitions
from friends of this man who do not believe
he was justly convicted or that the crime,
Castration
0
0
0
- FEMALES ■
Salpingectomy Ovariotomy
0 0
0 0
0 0
Total
1
0
i
of which he was convicted, ever occurred.
What the final result will be cannot at this
lime be determined.
"We have one other case here — that of a
young man of doubtful normal mental condi-
tion. In this case the commitment contains
an order that 'an operation be performed
upon the said William Henry Harrison
Revenue for the prevention of procreation,
and said operation not to be performed until
further order from the Court.' It might
appear that the intention of the Court, in
making the provision that the operation
should not take place until further orders
of the Court, was that it should be a saving
clause in the event that the young man, now
under a life sentence, should be discharged
from prison." August 23, 1913.
2. State Reformatory, Monroe.
(a) Donald B. Olson, Superintendent.
"Section 35 of 1909 Laws of Washington has
not been carried out as far as it affects the
inmates of this institution. We have no
authority from the courts to perform such
an operation, consequently none has been
performed. I am in favor of the law when
carefully worked out." February, 1918.
(b) P. H. Raymond, Chaplain. "I am
heartily in favor of the sterilization statute,
if worked out with judicial care. I am also
anxious to know if the law has been operated
in other states and with what results, and if
within your powers to supply any informa-
tion concerning it, I would appreciate your
sending it." February, 1918.
92
Statisticai, Summary op Eugbnical Sterilization
(c) Geo. P. Dubuque, Secretary. "Al-
though we believe m sterilization it has never
been done at this institution." January,
1921.
IN THE COURTS.
Honorable George B. Holden,. Judge of
the Superior Court, County of Yakima,
State of Washington, makes the following
statement of two cases recently before his
court:
(a) "The case in question is that of State
of Washington vs. John Hill, upon whom I
suspended judgment and suggested an opera-
tion for the prevention of procreation. This,
however, was merely a suggestion, and not
a part of the judgment in the case.
"On January 30, 1922, John Hill pleaded
guilty to the crime of grand larceny. The
theft was of a number of hams, which he
took by stealth because of his impoverished
condition; their value, however, being more
than $25.00, he was guilty of grand larceny
and subject, under our indeterminate sen-
tence law, to not less than six months, nor
more than fifteen years, imprisonment in the
state penitentiary, which was the judgment
of the court and the judgment was sus-
pended during good behavior. The facts of
the case, which led to the suggestion that
he submit to! a voluntary operation for the
prevention of procreation, and to which
suggestion he assented after the details of
the operation (vasectomy) and its results
were explained to him, are as follows:
"Hill is a Russian beet sugar laborer,
with a wife and five children, all under the
age of eleven years. He is robust physically,
about forty years of age, and his wife some
years his junior. Hill, his wife and five
children are all mentally subnormal, even
for their situation in life. For many months
the children have been half starved and half
clothed. It was apparent that he could not
provide them with the common necessities
of life, to say nothing of giving them any
sort of advantages in the world by way of
education or other preparation to battle for
themselves. He was forced to steal to pre-
vent them from starvation, or to apply for
public aid. The case was brought to the
attention of the authorities through the dis-
covery of the theft of the hams, since which
time he and his family are partially dependent
upon public charity, and without the addition
of more children to the family, will un-
doubtedly continue to be more or less a
public charge; with more children, the ex-
tent of demand for public charity will be in-
creased. Under these conditions, the opera-
tion was suggested to him and after explana-
tion, as before stated, he consented."
(b) "I had occasion to order such an
operation upon the defendant in the case of
State vs. Chris McCauley on the 12th day
of December, 1921. The history of this
case, so far as is known, is as follows:
"McCauley was convicted in King County,
Washington, February 25, 1918, under the
name of Harry Taylor, of the crime of
burglary in the second degree, and sentenced
to the State Reformatory, at Monroe,
Washington. Some time subsequent to his
sentence, it was learned by the Board of
Control, that he had previously been con-
victed of a felony in connection with dyna-
miting a store at Cle Elum, Washington,
and had served five years in the State Peni-
tentiary at Walla Walla, for this offense;
thereupon he was ordered transferred from
the State Reformatory to the State Peni-
tentiary, at Walla Walla, from which latter
institution he was later paroled, and on
September 17, 1921, he was convicted in this
(Yakima) county of the crime of grand
larceny. Thereupon he was informed
against as an habitual criminal and convicted
by a jury on November 30, 1921, and
sentenced by me on December 12, 1921, to
the State Penitentiary, at Walla Walla, for
a period of not more than twenty years,
nor less than ten years, and an operation
was directed to be performed upon him by
the warden of the penitentiary for the pre-
vention of procreation.
"This man, about 35 years of age, is sub-
normal mentally and has every appearance
and indication of immorality. He has a
strain of negro blood in his veins and has
a lustful and disgusting appearance.
"The subject of sterilization is one that
must receive more attention from the Ameri-
can public." March 10, 1922.
The statute dates from 1913
status (January 1, 1922). Active. Eleven
(11) state institutions, also the several
county institutions of the same types, are
subject to the act (see p. 31, chapter III),
16. WISCONSIN.
Present although the State Board of Control feels
that neither institutions 6, 7 or 8 below listed,
should be thus included. The state institu-
tions have performed eugenical sterilizing
operations as follc^ws:
Statisticai. Summary o? Eugenicai, Sterilization
93
MAI,ES
Vasectomy Castcatlon
1. State Prison, Waupun o 0
3. State Reformatory, Green Bay 0 0
3. State Hospital for Insane,
Mendota 0 0
4. Northern Hospital for Insane,
Winnebago 0 o
5. Home for Feeble - Minded,
Chippewa Falls 15 o
6. Public School, Sparta 0 0
7. Industrial School for Boys,
Waukesha 0 0
8. Industrial School for Girls,
Milwaukee 0 0
9. Southern Wisconsin Home for
Feeble-Minded and Epileptics,
Union Grove 0 o
10. Industrial Home for Women,
Taycheedah 0 0
11. Central State Hospital for the
Insane, Waupun 0 0
FEMALES
Salplngeotomy Ovariotomy
0 0
Total
0
0
0
0
0
0
0
0
0
0
61
0
76
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
Total to January 1, 1931... 15
Notes on the Enforcement of the Eugenical
Sterilization Law in Wisconsin.^
Although the Wisconsin law is applicable
to several types of institutions, the State
Board of Control has thus far used it only
in cases in the State School for the Feeble-
Minded at Chippewa Falls. In this they
are acting conservatively and because it is
generally recognized that so far as degen-
eracy is concerned, feeble-mindedness is
more readily diagnosed than insanity and
also when the problem of social menace due
to worthless offspring is involved, feeble-
mindedness deserves to be dealt with before
insanity. The extension of this law to other
institutions is a matter of conservative de-
velopment and doubtless will be made when
the state administrative system is prepared
for it. The law seems to be working intelli-
gently and effectively.
From the Report of the Wisconsin
State Board of Control, 1917-1918, pp. 6
and 7.
"At various times since the legislature
gave such authority, operations have been
performed on inmates of both sexes of the
Home for Feeble-Minded. There have been
but few objections by the parents or rela-
tives, and frequently the parents have re-
quested that the operation be performed.
Fifty-eight inmates have been sterilized, di-
vided about equally between the sexes.
Many of these, especially the females, have
> Institutions 4, 8 and 10 did not supply
historical comment.
61
0
76
been paroled, and most of them are doing
well. But few have been returned to the
home.
"It is the intention of the Board to con-
tinue these operations."
Excerpts from letters of the State Board
of Control.
"I note that there is a question upon which
you want information, about which you did
not write me before; that you are receiving
returns from a good many of the state insti-
tutions of Wisconsin, which are subject to
the sterilization law, but that this state differs
from many others having such laws, in that
the law is applicable to county institutions.
"Under the sterilization law of Wisconsin
we have power to sterilize any chronic insane
inmate of a county asylum. We have thirty-
five county asylums in this state with a
population of about 6,300. Up to the present
time none of the classes which we have
power to sterilize have been sterilized except
the feeble-minded.
"The Board did not think it wise to pro-
ceed with too much haste in the sterilization
of mental defectives and it was thought best
to sterilize at different times a number of
feeble-minded patients and wait until it was
determined what effect the operation had
upon them. We find that it has little or no
effect upon their mental condition.
"We are now placing out in homes some
of the feeble-minded persons who have been
sterilized. This is done as an experiment to
94
Statisticai, Summary of Eugunical Sterilization
determine whether it is advisable and safe
to place these persons in homes. Those that
have been placed out have only been a short
time in homes and it is yet difficult to deter-
mine whether the plan is going to be a suc-
cess. If it is successful, we in time will
•have quite a large number of feeble-minded
persons placed out in homes.
"No report has yet been made upon the
sterilization of defectives, except the reports
b'y the superintendent of the Home for the
Feeble-Minded and the report which is in-
cluded in our last biennial report.
"M. J. TAPPINS, Secretary."
February, 1918.
"Since the date of the last report we have
caused about one hundred and fifty persons
to be sterilized. All of these were inmates of
the Home for the Feeble-Minded and divided
about equally between the sexes. A number
of those that had been sterilized have been
released from the Home, especially females.
There have been no bad results from the
operations; so far as we can determine, the
operation has little or no effect upon the
mentality of the individual.
"It is the intention of the Board to con-
tinue to exercise the authority given by
statute to perform these operations. We
have not yet extended it to the criminal
classes; but that will probably be done in
the future. M. J. Tappins, Secretary."
February, 1919.
"The correct number of operations for
sterilization that have been performed is 76,
of which 16 were males and 60 females.
There was an error in our report of 1918
in the number.
"During the war period practically no
operations were performed because the sur-
geon who did the operating was engaged
in war work. A number of the inmates who
were sterilized have been placed out in homes
and are getting along reasonably well, and
thus far the result of the operations has been
satisfactory to the Board. Of course, the
operation results in little or no change in
the mental condition of the person operated
upon.
"Thus far no action has been, brought in
the courts to determine the constitutionality
of the sterilization law, and we hope that no
such action will be brought, because in many
of the states where actions have been
brought the law has been declared uncon-
stitutional. We do not want such a result
here in Wisconsin because we believe that
the sterilization of mental defectives will
have a tendency to reduce the number in
this class. M. J. Tappins, Secretary."
February, 1930.
"With reference to the organization of
Sterilization Boards which may have been
appointed or are now authorized to enforce
the Sterilization Law in Wisconsin, you
are advised that no permanent board has
been created."
"The State Board of Control from time to
tiiTie appoints one surgeon and alienist who
together with the Superintendent of the in-
stitution act as a board in making a physi-
cal and mental examination upon the in-
mates committed to our Wisconsin Home
for the Feeble-minded and upon their, find-
ings and recommendations, this board au-
thorizes that an operation for the prevention
of procreation may be performed."
H. W. WILLIAMS, Statistician,
February, 1921.
"Although the act authorizes this Board
from time to time to appoint one surgeon
and an alienist whose duty it shall be in con-
junction with the Superintendent of Insti-
tutions having charge of the criminal in-
sane, feeble-minded and epileptic to exam-
ine into their mental and physical condition
and report as to the advisability of perform-
ing the operation for the prevention of pro-
creation, we have not as yet carried these
investigations beyond the inmates of our
Wisconsin Home for the Feeble-Minded
and at the present time it is the policy of
this Board not to go beyond this class of
people in the sterilization of mental defec-
tives."
"Since this law has been in effect there has
been no legal action introduced in any of
the Courts or any adverse opinions ren-
dered by the Attorney General of this
state, which would in any way have a ten-
dency to defeat the operation of the law."
11. W. WILLIAMS. Statistician.
February, 1921.
In response to inquiries the follow-
ing information and opinions were given:
1. State Prison, Waupun. Wisconsin
State Prison (only signature given) "Take
our name from your inquiry list." Janu-
ary, 1921.
2. State Reformatory, Green Bay. Dr.
C. O. Latham, Physician, reports that, medi-
cally he has had no opportunity to follow
case histories, but that eugenically the stat-
ute is of undoubted value. January, 1918.
Statistical Summary of Eugenical Steriuzation
95
3. State Hospital for Insane, Mendota. F.
I. Drake, M. D., Superintendent. When asked
concerning his judgment in reference to the
general policy of eugenical sterilization, Dr.
Drake's laconic reply was: "Excellent." Jan-
uary, 1921.
5. Home for Feeble-Minded, Chippewa
Falls, (a) Dr. A. W. Wilmarth, Superin-
tendent. '■♦ * » I might add that the statute
legalizing sterilization in this state was
passed for the following reasons:
"It was found that the high-grade imbe-
cile almost invariably cohabited with those
who were also defective to some degree.
Sometimes this was legalized by marriage,
sometimes not. In every case, the offspring
were generally defective. It was found that
these physically strong and mentally cun-
ning defectives could not be sequestrated
successfully without curtailing their freedom
of action more than was desirable. Many
elope, others are discharged by that "court
of last resort," a jury of laymen who know
nothing about them. Parole was followed,
more often than not, by the birth of more
children. The operation here is primarily
to prevent conception. No organ is removed
except if found actually diseased, so that the
health of the patient demands it. A small
ijortion is removed from the cord, or tube,
sufficient to make conception impossible.
In that way, we hope, and expect, to be
able to parole some to their friends where
they can live a broader life than here, and
where in case of a single indiscretion, should
they escape the vigilance of their guardians,
it would not be followed by the birth of
offspring whose whole life would be a trag-
edy." February, 1918.
(b) "* * * Some of these operations
were made at the request of parents, and
none of them against the relatives' wishes.
Where objections were filed, no operation
has been performed.
"* * * The cases are so uniform that I
can see no advantage in taking time for sep-
arate reports. The operation was limited
to section, and ligating of both ends of the
spermatic cords in the males, and the tubes
in the females.
"In the brief time which has elapsed, we
have seen no change in the mental or physi-
cal characteristics of these cases, nor do we
see any reasons for expecting any.
"The sole reason for operation is to pre-
vent conception; many of our wards, com-
ing from reasonably good homes, with par-
ents who can, to a considerable extent, guard
their children. This operation will prevent
the serious results which may occur from
even a single indiscretion. =" * *" February,
1918-.
(c) In response to inquiry concerning the
medical and eugenical values of the statute.
Dr. Wilmarth replied: "No operations were
undertaken that were not primarily for the
purpose of sterilization. After operations we
do not expect these cases to be able to turn
over to the public ten sub-normal children,
as one women has in this state. Some fam-
ilies have sent four and five. We hope to
diminish the number who need care, until it
more nearly approaches the number we are
able to care for. We expect no other re-
sults." February, 1918.
(d) A. L. Beier, M. D. Superintendent.
"The procedure as outlined in the provisions
of the Wisconsin Sterilization Act is fol-
lowed in this institution. The production of
sterility in mental defects by surgical meth-
ods is the most powerful and effective means
that we have at our disposal to prevent
their propagation."
"During the last biennial period or from
July 1, 1918 to June 30, 1920, 17 inmates
were operated upon for the prevention of
procreation under the Sterilization Act. In
each case their recovery from the operation
was satisfactory and complete and as was
expected no marked change was noted in
their mental condition." February, 1931.
6. Public School, Sparta. L. H. Prince,
Superintendent. "I have no suggestions to
make at the present time, but I am in favor
of the general policy of eugenical steriliza-
tion." January, 1921.
7. Industrial School for Boys, Wauke-
sha. Oscar Lee, Superintendent. "Ster-
ilization is not practiced in this institution."
January, 1921.
9. Southern Wisconsin Home for Feeble-
Minded and Epileptics, Union Grove. H.
C. Werner, Superintendent. "No cases were
selected in this institution for sterilization
because we have at present no hospital facili-
ties for such work. It is advisable in se-
lected cases only." January, 1921.
11. Central State Hospital for the In-
sane. Waupun. Dr. Rock Sleyster, Superin-
tendent. "This is to advise you that our
State Board of Control has not ordered any
of this work applied to this institution. The
only place in Wisconsin where anything has
been done is the Home for the Feeble-
96 .
Statisticai, Summary o^ EugEnicai, StEriwzation
Minded at Chippewa Falls." February,
1918.
Milwaukee County Hospital for Mental
Diseases. Wauwatosa. Dr. A. W. Young,
Superintendent, reports that there have been
no operations under this Act in his institu-
tion. He holds the opinion that the medical
value of the statute is good, and that eugeni-
cally it would work out for the benefit of
humanity. January, 1918.
II. SUMMARY OF EUGENICAL STERI-
LIZATION IN THE SEVERAL
STATES.
A. Statistical Summary to January 1, 1921.
(a) States and Institutions.
1. Total number of states which have or
have had eugenical sterilization laws 15
(a) Number of states with laws still
in force 9
(b) Number of states in which the
courts have held the steriliza-
tion laws unconstitutional , 5
(c) Number of states which have re-
pealed their sterilization laws,
after having been declared un-
constitutional 1
3. Number of states in which steriliza-
tion bills have been vetoed or sterili-
zation laws revoked by referendum. . 5
3. Total number of state* institutions
which are or have been legally en-
titled to practice eugenical steriliza-
tion 124
4. Number of state institutions at pre-
sent legally entitled to such practice. 70
5. Number of such state mstitutions
which, to a greater or less extent,
have practiced legalized eugenical
sterilization 31
6. Number of state institutions which
were or are entitled to such practice
but which have not made use of it. 03
7. Greatest number of operations per'
formed by any one institution
(Southern California State Hospital,
Patton) 1 ,009
8. Number of states having eugenical
sterilization laws unattacked by the
courts but which have made no use
of them (South Dakota) 1
9. Number of states in which all of the
state institutions authorized to prac-
tice eugenical sterilization, have made
use of it. (Oregon) 1
• In Michigan, New Jersey and Wisconsin,
certain types of county and other municipal
institutions are, or were, subject to the act.
(b) Total number of Eugenical Sterili-
zation Operations in all Fifteen
(15) States from beginning of
legalized operations, in 1907, to
January 1, 1921 3,233
1. By Sex.
Males (vasectomy 1,781; castration
72) 1,853
Females (salpingectomy 1,280; ovari-
otomy 100) 1,380
Total 3,233
2. By Radicalness of Operation.
Less Radical (vasectomy 1,781; sal-
pingectomy 1,280) 3,061
More Radical (castration 72; ovario-
tomy 100) 172
Total 3,233
3. By Classes.
In Institutions for the
1. Feeble-minded 403
2. Insane 2,700
3. Criminalistic 130
Total 3,233
4. By States.
1. California 2,558
2. Connecticut 27
3. Indiana 120
4. Iowa 49
5. Kansas 54
6. Michigan 1
7. Nebraska 155
8. Nevada "
9. New Jersey 0
10. New York 42
1 1. North Dakota 23
1 2. Oregon 12"
13. South Dakota 0
1 4. Washington 1
] 5. Wisconsin 76
Total 3,233
r.. By Time.
Prior to January 1, 1919:
Males (vasectomy 1,376;
castration 25) 1,401
Females (salpingectomy
836; ovariotomy 80) 916 2,317
Between January 1, 1919 and
January 1, 1921:
Males (vasectomy 405;
castration 47) 452
Females (salpingectomy
444; ovariotomy 20) 464 916
Total since beginning, in 1907,
of legalized sterilization 3,233
Statisticai, Summary of Eugenical Steriwzation
97
B. Descriptive Summary.
Among the fifteen states which have en-
acted eugenical sterilization statutes the law
is still on the statute books, unattacked by
the courts and therefore still available for
use, in the following nine states: California,
Connecticut, Iowa, Kansas, Nebraska,
North Dakota, South Dakota, Washington,
and Wisconsin. California, Connecticut,
Kansas, Iowa, and Washington, have each
enacted more than one eugenical steriliza-
tion statute.
In California and Nebraska the law is
functioning in a very satisfactory man-
ner. In Connecticut, North Dakota and
Wisconsin, similarly, the law is being ap-
plied without challenge in a satisfactory
manner but to a very limited extent. In
Washington and Nebraska special executive
machinery of proven competency is en-
trusted with the enforcement of the steriliza-
tion law. In Kansas and Iowa it has fallen
into disuse. In South Dakota the statute
is practically a dead letter.
In Iowa the law of 1913 was declared un-
constitutional; it was repealed and re-en-
acted in new, and apparently constitutional
form, in 1915. In New York the law was de-
clared unconstitutional by the courts (1918)
and repealed (1920), but has not yet been
re-enacted by the Legislature. In New Jer-
sey, Nevada, Michigan, Indiana, and Oregon,
the laws were declared unconstitutionl by
the courts but are still on the statute books,
dead letters. In the State of Washington
litigation resulted in upholding the consti-
tutionality of a very drastic eugenical and
punitive sterilization law.
Eugenical sterilization laws have been ve-
toed by the Governors of Pennsylvania
(1905, 1921), Oregon (1909), Vermont
(1913), Nebraska (1913), and Idaho (1919),
subsequently, however, Oregon (1917), and
Nebraska (1915) enacted successful laws. In
Oregon also, a former sterilization law was
revoked (1913) by referendum.
In analyzing the tables of this chapter it
will be noticed that under the law thus far
there have been eugenical sterilizations in
only State Institutions for the (1) insane,
(2) feeble-minded and (3) criminalistic. No
eugenical sterilization operations have thus
far been performed in —
(a) State Institutions for the (1) ineb-
riates, (3) diseased, (3) blind, (4) deaf,
(5) deformed, (6) dependent, (7) epileptic,
nor in
(b) County, Municipal or Private In-
stitutions for any type of the socially inade-
quate, nor
(c) Among the socially inadequates and
cacogenic individuals in the . population at
large.
PRACTICAL ASPECTS.
The extension of the provisions of the ster-
ilization law to all cacogenic persons of a
given legal standard, whether within cus-
todial institutions or in the population at
large, is both a legal and a practical re-
quirement for eugenical effectiveness.
In the matter of legal authorization and
control of eugenical sterilization it may be
safely concluded that the experimental per-
iod is rapidly passing. It is now known
what attitude the courts generally will take
toward specific elements in laws authoriz-
ing sterilization. Also the practical eugeni-
cal standard for sterilization is fairly well
established. In any particular case this
standard can be scientifically applied in a
satisfactory manner by medical diagnosis
and eugenical field work. In such cases it
remains, of course, for the courts to deter-
mine the legal validity of the facts thus pre-
sented and to order or to refuse the appli-
cation of the law. The nature of adminis-
trative machinery which will work and which
will fail is, from the experiments already
made, fairly well known, so that if the prin-
ciple of eugenical sterilization has public sup-
port, practically any state legislature can, if
it chooses, enact a functioning law. (See
Model Sterilization Law, Chapter XV.)
CHAPTER V.
ANALYSIS OF THE STERILIZATION LAWS BY SUBJECT.
1. The Motives of the Sterilization Statutes 99
A. The Motive of Heredity 99
B. Therapeutic Motive 100
C. Punitive Motive 101
2. Executive Agencies 102
3. Provisions for Making Family History Studies 104
4. Biological Criteria for Determining the Applicability of the Law to a
Particular Individual 104
5. Court Procedure Provided by the Several Sterilization Statutes 107
6. Legal Counsel for the State and for Persons Nominated for the Operation 110
7. Is the Consent of the Patient or Guardian a Necessary Pre-requisite to
Legal Eugenical Sterilization ? 110
8. Type of Operation and Manner of its Performance Ill
9. Bad Biology in the Eugenical Sterilization Statutes 113
10. Mandatory and Optional Elements in the Laws 114
11. Sexual Sterilization of Criminals 117
13. Legal Liability of Executive Agents and Surgeons 184
13. Punishment for Dereliction in Executing the Law 185
14. Punishment for the Illegal Use of Sexual Sterilization 186
15. The Legal Aspect of Sexual Sterilization for Therapeutic Purposes 187
16. The Sexual Sterilization of Inmates of Custodial Institutions Prior to
Their Release 188
17. Class Legislation 130
18. What Constitutes Due Process of Law in Eugenical Sterilization? 138
19. Records and Reports Required by Law 137
20. Costs and Appropriations 139
Analysis of rnt Steriwzation Laws by Subject
99
1. JHE MOTIVES OF THE STERILI-
^ ZATION STATUTES.
By impRcation all of the sterilization stat-
utes are eugenical. Still the three motives
of eugenical betterment, therapeutic value to
the patient, and punishment for crimes in-
volving moral turpitude or confirmed crim-
inalistic tendencies, are, in different statutes,
variously combined, while in one state,
Nevada, the law is purely punitive. Also in
Washington the first statute, 1909, was purely
punitive, but the second, 1931, is primarily
eugenical. The motive of human steriliza-
tion as authorized by law should be purely
eugenical — that is, it should seek to improve
the racial qualities of future generations.
A. The Motive of Heredity.
So far as the recognition of heredity as a
factor in determining social adequacy on the
part of individuals is concerned,, we find the
following provisions in the statutes:
1. INDIANA. (Preface) "An act to pre-
vent procreation of confirmed criminals,
idiots, imbeciles and rapists * * *" "* * *
Whereas, heredity plays a most important
part in the transmission of crime, idiocy,
and imbecility: * * *"
3. WASHINGTON. First Law: No
reference.
Second Law (Preface) "An Act to pre-
vent the procreation of feeble-minded, insane,
epileptic, habitual criminals, moral degen-
erates and sexual perverts * * *"
(Section 1.) "* * * who are persons po-
tential to producing offspring who, because
of inheritance of inferior or anti-social traits,
would probably become a social menace or
wards of the State."
3. CALIFORNIA. Second Law: This
statute applies to inmates of state institutions
who are afHicted with hereditary insanity or
incurable chronic mania or dementia.
Amendment to Second Sterilization Law:
This amendment emphasizes the relation of
heredity to social degeneracy by including
in reference to the specifications of inmates
of institutions subject to the act the follow-
ing new phrases: (Section 2) "* * * who is
afflicted with mental disease which may. have
been inherited and is likely to be transmitted
to descendants, the various grades of feeble-
mindedness, those suffering from perversion
or marked departures from normal mentality
or from disease of a syphilitic nature * * *."
4. CONNECTICUT. (Section 1) "* * *
if in the judgment of a majority of said board
procreation by any such person would pro-
duce children with an inherited tendency to
crime, insanity, feeble-mindedness or imbe-
cility * * *."
5. IOWA. First Law (Preface) "AN
ACT to prevent the procreation of habitual
criminals, idiots, feeble-minded and imbeciles
* * *" (Section 1) "* * * that procreation
by any such inmate would produce children
with a tendency to disease, crime, insanity,
feeble-mindedness, idiocy or imbecility * * *"
Second Law (Preface) "* * * relating to
the prevention of the procreation of crimin-
als, rapists, idiots, feeble-minded, imbeciles,
lunatics, drunkards, drug-fiends, epileptics,
syphilitics, moral and sexual perverts, and
diseased and degenerate persons * * *"
(Section 1) "* * * that procreation by any
such inmates would produce children with a
tendency to disease, deformity, crime, in-
sanity, feeble-mindedness, idiocy, imbecility,
epilepsy, or alcoholism * * *"
Third Law (Preface) "* * * to prevent
the procreation of the insane, idiots, imbe-
ciles and feeble-minded * * *" (Section 1)
"* * * that it is better for the interests of
* * * and society • * * "
6. NEW JERSEY (Preface). "WHERE-
AS, heredity plays a most important part
in the transmission of feeble-mindedness,
epilepsy, criminal tendencies and other de-
fects * * •"
7. NEW YORK (Section 351). Referring
to the inmates of institutions and examina-
tions of them by the board, the law provides,
"* * * if procreation by any such person
would produce children with an inherited
tendency to crime, insanity, feeble-mind-
edness, idiocy or imbecility * * *"
8. NORTH DAKOTA (Preface). "AN
ACT to prevent procreation of confirmed
criminals, insane, idiots, defectives, and rap-
ists * * *" (Section 1) "* * * or that pro-
creation by such inmate would likely result
in defective or feeble-minded children with
criminal tendencies * * *" (Section 11)
"Whereas, heredity plays a most important
part in the transmission of crime, insanity,
idiocy, and imbecility, and our institutions
for degenerates are overcrowded on account
of the lack of adequate tneans of checking
the ever-increasing numbers of this class;
and whereas, there is now no provision in
law authorizing an operation for the sterili-
zation of defective persons, this act shall
take effect and be in force from and after
its passage and approval."
100
Analysis of the Steriuzation Laws by Subject
9. MICHIGAN (Section 2). "* * * if
procreation by any such person would pro-
duce children with an inherited tendency to
insanity, feeble-mindedness, idiocy or im-
becility * » * *"
10. KANSAS. First Statute (Preface).
"An act to prevent the procreation of habitual
criminals, idiots, epileptics, imbeciles, and in-
sane, and providing a penalty for the viola-
tion thereof." (Section 1)
procrea-
tion by any such inmate or inmates would
produce children with an inherited tenden-
cy to crime, insanity, feeble-mindedness, epi-
lepsy, idiocy, or imbecility * * *."
Second Statute (Preface) "An act to pre-
vent the procreation of habitual criminals
idiots, epileptics, imbeciles and insane * * *"
(Section l) "* * * procreation by any such
inmate would be likely to result in defect-
ive or feeble-minded children with criminal
tendencies * * *"
11. WISCONSIN. This statute is eugen-
ical by implication in that its preface states:
"An act * * * relating to the prevention _ of
criminality, insanity, feeble-mindedness, epi-
lepsy * * *"
12. NEBRASKA. (Section 3) "* * * that
such an inmate is capable of bearing or be-
getting offspring, that children borne or be-
gotten by such inmate would inherit a ten-
dency to feeble-mindedness, insanity, or de-
generacy, that such children would probably
become a social menace and that procreation
by such inmate would be harmful to society
# # *t>
13. • OREGON. (Preface) "An act to pre-
vent the procreation of feeble-minded, in-
sane, epileptic, habitual criminals, moral de-
generates and sexual perverts * * *" (Sec-
tion 2) " * * ' who are persons potential to
producing offspring, who, because of in-
heritance of inferior or antisocial traits,
would probably become a social menace, or
a ward of the Slate."
14. SOUTH DAKOTA. (Preface) "An
act entitled, An Act for the Prevention of the
Procreation of Idiots, Imbeciles and Feeble-
Minded Persons. (Section 2) "* * * that
the procreation by any of said inmates would
produce children with a tendency to disease,
feeble-mindedness, idiocy, or imbecility * * *"
B. The Therapeutic Motive.'
If for sound medical reasons the physi-
cians and surgeons of a custodial institu-
tion find that an operation involving the
' See also page 127.
destruction of the reproductive fuiT'aons
would be beneficial to any particular inmates,
certainly in no state in the Union would it
be legally beyond the province of the au-
thorities of the particular institution to order
such an operation or treatment, provided the
ordering of operations or treatments of
equally serious surgical sequence, but which
do not involve the destruction of reproduc-
tive functions, might legally be ordered by
such same authority. Nevertheless the stat-
utes have often seen fit to add a therapeutical
motive to the eugenical one which actuates
most of the laws in relation to sexual sterili-
zation.
1. INDIANA. No direct reference.
2. WASHINGTON, First Law: No
direct reference.
Second Law (Section 3) "* * * no person
shall be emasculated under the authority of
this act except that such operation shall be
found to be necessary to improve the physi-
cal, mental, neural or psychic condition of
the inmate."
3. CALIFORNIA. First Law (Section
1) "• * * would be beneficial and conducive to
the benefit of the physical, mental or moral
condition of any inmate * * *"
Second Law (Section 2) "* * * it will
be beneficial and conducive to the benefit
of the physical, mental or moral condition
of any recidivist * * *"
4. CONNECTICUT. (Section 1) "* * *
if the physical or mental condition of any
such person will be substantially improved
thereby • * •"
5. NEVADA. No direct reference.
6. IOWA. Second Law (Section 1) "* * *
or if the physical or mental condition of
any such inmate would probably be mate-
rially improved thereby * * *."
Third Law (Section 1) that it is
for the best interests of the inmate * * *."
7. NEW JERSEY. No direct reference.
8. NEW YORK. (Section 1) "* * * or
if the physical or mental condition of any
such person will be substantially improved
thereby * ' *."
9. .NORTH DAKOTA. (Section l)
"• * » whenever the warden, superintendent
* • * shall certify in writing that he believes
the mental or physical condition of any in-
mate would be improved thereby * * *"
10. MICHIGAN. (Section 2) "* * • or if
the physical or mental condition of any such
person would be improved thereby * * *■"
Anai^ysis op the Steriwzation Laws by Subject
101
11. KANSAS. First Law (Section 1)
"* * * or if tlie physical or mental condition
of any such person will be materially im-
proved thereby * * *"
Second Law. No direct reference.
13. WISCONSIN. No direct reference.
13. NEBRASKA. No direct reference.
14. OREGON. (Section 3) "* * * or if
the physical or mental condition of any such
person will be substantially improved there-
by * ' *"
15. SOUTH DAKOTA. (Section 2)
"* * * or if the mental condition of any such
inmate will probably be materially improved
thereby * * *"
C. Punitive Motive.
1. INDIANA. No reference.
2. WASHINGTON. First Law "* * *
the Court may, in addition to such other pun-
ishment or confinement as may be imposed,
direct an operation to be performed upon
such person for the prevention of procre-
ation * * *"
Second Law: Although this law is prima-
rily not punitive in its motive, it applies to
(Section 10) "* * * criminals, who have been
convicted three or more times of a felony
and sentenced to serve in the penitentiary
therefor.''
3. CALIFORNIA. 'First Law: It is
doubtful whether the application to criminals
of sterilization under this statute is punitive,
or is meant only to establish a criterion for
locating persons who are constitutional de-
generates. (Section 1) "Provided, that in
the case of an inmate or convict confined
in any of the state prisons of this state, such
operation shall not be performed unless the
said inmate or convict has been committed
to a state prison in this or in some other
state or country at least two times for some
sexual offense, or at least three times for any
other crime, and shall have given evidence
while an inmate in a state prison in this
state that he is a moral and sexual pervert;
and provided further, that in the case of con-
victs sentenced to state prison for life who
exhibit continued evidence of moral and sex-
ual depravity, the right to asexualize them, as
provided in this act, shall apply, whether
they have been inmates of a state prison
either in this or any other state or country
more than one time."
Following the ruling of the Federal Court
in the Iowa case, it is probable that if the
above reference were punitive in any degree.
it would be declared to be a bill of attain-
der, and would render the act unconstitu-
tional.
Second Law. (Section 2) "* * * pro-
vided, that such operation shall not be per-
formed unless the said recidivist has been
committed to a state prison in this or some
other state or country at least two times for
rape, assault with intent to commit rape, or
seduction, or at least three times for any
other crime or crimes, and shall have given
evidence while an inmate of a state prison
in this state that he is a moral or sexual
degenerate or pervert; and provided, further
that in the case of convicts sentenced to state
prison for life, who exhibit continued evi-
dence of moral and sexual depravity, the
right to asexualize them, as provided in this
section, shall apply whether they shall have
been inmates of a state prison in this or any
other country or state more than one time
or not; * * '"
The same comment which accompanies
the provisions similar to these in the first
California law apply equally well to these
provisions. The fact that this law in Cali-
fornia is functioning so splendidly and that
no test case has arisen under it, leads one to
incline toward the belief that the above
reference to criminals who are subject to
the act is meant not to be punitive, but only
to establish a criterion for hereditary de-
generacy.
4. CONNECTICUT. No reference.
5. NEVADA. "* * * the court may, in
addition to such other punishment or confine-
ment as may be imposed, direct an opera-
tion to be performed upon such person for
the prevention of procreation * * *"
6. IOWA. First Law (Section 1) "Pro-
vided that such operation shall be performed
upon any convict or inmate of such insti-
tution who has been convicted of prostitu-
tion or violation of the law, as laid down
in chapter two hundred and sixteen, acts of
the thirty-third general assembly, or who
has been twice convicted of some other
sexual offense, or has been three times con-
victed of felony, and each such convict or
inmate shall be subjected to this same oper-
ation of vasectomy or ligation of the Fallo-
pian tubes, as the case may be * * *."
Second Law. (Section 1) "Provided that
such operation shall be performed upon
every convict or inmate of such institution
who has been convicted of prostitution or
violation of the law as laid down in chapter
f
102
Anai,ysis oif THE Sterilization Laws by Subject
316 of the acts of the thirty-third general
assembly, or who has been twice convicted
of other sexual offenses, including solicit-
ing, as defined in section 4975-c of the sup-
plement to the code, 1907, or who has been
twice convicted of a felony, and each such
convict or inmate shall be subject to this
same operation of vasectomy or ligation of
the Fallopian tubes, as the case may
be * * *."
These provisions were the ones which
caused the Federal District Court to declare
the Iowa statute a bill of attainder,
and a denial of equal protection of
the laws. It assumes here that these
provisions are purely punitive. Had
they been looked upon as in no manner
punitive, but as establishing in place of the
usual pedigree studies criteria for the de-
termination of that degree of hereditary
degeneracy which the state forbids to re-
produce itself, then a different outcome
might have resulted from the litigation, but
the Court took the view that the motive was
punitive, and consequently the act was de-
clared unconstitutional.
Third Law. This statute, which repeals
the law of 1913, because the latter was de-
clared unconstitutional, does not apply to
inmates of prisons, and furthermore applies
only to inmates of hospitals for the insane,
and then only with the consent of the patient
or his guardian or next of kin.
7. NEW JERSEY. This statute in refer-
ence to its applicability to criminals was not
tested by the courts, therefore it is difficult
to determine whether section 2 is punitive or
is meant only to establish a criterion for de-
termining hereditary degeneracy. Section 2
reads: "The criminals who shall come with-
in the operation of this law shall be those
who have been convicted of the crime of
rape, or of such succession of offenses
against the criminal law as in the opinion of
this board of examiners shall be deemed to
be sufficient evidence of confirmed crimin-
al tendencies."
8. NEW YORK. The situation here is
the same as in New Jersey. A part of section
351 reads: "The criminals who shall come
within the operation of this law shall be
those who have been convicted of the crime
of rape or of such succession of offenses
against the criminal law as in the opinion of
the board shall be deemed to be sufficient
evidence of confirmed criminal tendencies."
9. NORTH DAKOTA. No reference.
10. MICHIGAN. No reference.
11. KANSAS. First Law: No reference
Second Law: No reference.
12. WISCONSIN. No reference.
13. NEBRASKA. No reference.
14. OREGON. (Section 4) "The purpose
of said investigation, findings, and orders of
said Board shall be for the betterment of
the physical, mental, neural, or psychic con-
dition of the inmate, or to protect society
from the menace of procreation by said in-
mate, and not in any manner as a punitive
measure; * * *" (Section 10) "The crimi-
nals who shall come within the operation of
this law shall be those who have been con-
victed three or more times of a felony in
the courts of any state and sentenced to
serve in the penitentiary therefor.''
It is evidently the intention of this law,
as shown in Section 10, to act not as a puni-
tive measure, but as a criterion for locating
inmates of prisons who are hereditarily de^
generate.
15. SOUTH DAKOTA. No reference.
Sterilization laws should of course apply
to degenerates and defectives who have been
convicted of crime on the same terms as
to persons equally degenerate or defective
who have not been sentenced to prison. But
the location among. prisoners of such indi-
viduals should be effected by modern pedi-
gree studies rather than by the rules based
upon the number of commitments and the
type of crime for which punishment is being
meted out; because the latter criterion is not
nearly so effective as the pedigree method,
but on the other hand most certain in many
cases to be mistaken for a punitive measure.
2. EXECUTIVE AGENCIES.
The location of persons who are poten-
tial parents of socially inadequate offspring
and the securing of case history and family
pedigree evidence sufficient for legal proof
of such parenthood, is such an involved
and arduous task that the principal execu-
tive agent of a sterilization statute should
be a professional eugenicist who should de-
vote all of his time and attention to the
duties of his office, and who should be
aided by an ample corps of assistants. This
officer, the State Eugenicist, would be ex-
pected to invoke the operation of the law
in particular cases by nominating to the
courts of competent jurisdiction certain in-
dividuals for eugenical sterilization. When
such cases are contested, expert testimony
Analysis of the Sterilization Laws by Subject
103
must be available for just decisions, at which
time trained psychologists, eugenicists, an-
thropologists and physicians each, within
his particular realm of specialization, may be
considered competent witnesses. The great-
est error which a legislature could make in
enacting a just eugenical sterilization stat-
ute would be to delegate its enforcement and
execution solely to physicians and surgeons,
entirely ignoring the other fields of expert
knowledge equally pertinent to the prob-
lems in hand with the skill possessed by the
practitioner of medicine.
If a sterilization law is meant to be taken
seriously, it must contain mandatory fea-
tures, and consequently its enforcement is
much more apt to be effectively carried out
if entrusted to particular persons whose prin-
cipal business is the enforcement of such a
statute, than if made an extra duty of an ex-
isting body of officers who can give only
a portion of their time and attention to the
tasks imposed by the new statute.
In examining the sterilization statutes of
the 15 states which have thus far enacted
such laws, we find the following executive
agencies provided:
1. INDIANA. For each subject institu-
tion a Committee of Experts, consisting of
two skilled surgeons of recognized ability
and the regular institution physician. Ap-
pointment of committee compulsory.
2. WASHINGTON. First Statute. Judge
of the Criminal Court in cases adjudged
guilty of carnal abuse of female persons
under ten years of age, or of rape.
Second Statute. An institutional Board
of Health.
3. CALIFORNIA. First Statute. Board,
consisting of superintendent or resident
physician, with the general superintendent
of state hospitals, and the secretary of the
State Board of Health.
Second Statute. (1) For the insane, the
State Commission in Lunacy. (3) For re-
cidivists, the resident physician of the par-
ticular prison, the general superintendent of
state hospitals, and the secretary of the
State Board of Health. (3) For "idiots and
fools", the medical superintendent of any
state hospital.
Third Statute. Same as under the Second
Statute.
Fourth Statute. Board of Trustees of
Padfic Colony, on a recommendation of
the superintendent thereof, "approved by a
clinical psychologist holding the degree Ph.
D., and a physician qualified to serve" un-
der the act establishing said colony.
4. CONNECTICUT. For each subject
institution a board of three surgeons, one of
whom is the resident physician of the par-
ticular institution. Appointment of board
compulsory but not compulsory to bring
cases before them.
5. NEVADA. The Criminal Court, in
passing sentence for carnal abuse of a female
person under ten years of age, or for rape.
6. IOWA. First Statute. Board consist-
ing of the managing officer and surgical
superintendent of each institution, with
members of State Board of Parole.
Second Statute. Board consisting of the
managing officer and surgical superinten-
dent of each institution, with members of
State Board of Parole.
Third Statute. Superintendent of any
hospital for the insane, and a majority of
his medical staff, with the approval of the
Board of Control thereof.
7. NEW JERSEY. Board of Examiners
consisting of one surgeon, one neurologist,
and the State Commissioner of Charities and
Corrections.
8. NEW YORK. Board of Examiners
consisting of one surgeon, one neurologist,
and the State Commissioner of Charities and
Corrections.
9. NORTH DAKOTA. For each subject
institution, a Board consisting of the chief
medical officer of the particular institution,
the secretary of State Board of Health, and
one competent physician and surgeon.
10. MICHIGAN. For each subject insti-
tution, the Board of the particular institution
and the physician or surgeon in charge there-
of.
11. KANSAS. First Statute. Managing
officers of the particular institution in con-
junction with competent surgical assistants.
Second Statute. For each subject institu-
tion, the chief medical officer of the particu-
lar institution, the governing board thereof,
and the 'secretary of State Board of Health.
12. WISCONSIN. Special Board con-
sisting of one surgeon and one alienist in
conjunction with the superintendent of the
institution and the State Board of Control.
13. NEBRASKA. Five physicians ap-
pointed by the Board of Commissioners of
State Institutions from the medical staffs of
104
Analysis of the Steriuzation Laws by Subject
the state institutions, of whom three shall be
from the institutions for the feeble-minded
and the insane.
14. OREGON. State Board of Eugenics,
composed of the State Board of Health,
and the superintendents of the several sub-
ject state institutions. Secretary of the State
Board of Health is ex officio the Secretary
of the State Board of Eugenics.
15. SOUTH DAKOTA. State Board of
Charities and Corrections, the superintendent
of the single subject institution, and the
physician thereof.
3. PROVISIONS (EITHER DIRECT
OR IMPLIED) IN THE SEVERAL
STATUTES FOR MAKING FAMILY
HISTORY OR PEDIGREE
STUDIES OF THE PERSONS
SELECTED FOR EUGEN-
ICAL STERILIZATION.
Connecticut Law of 1909 (Chapter 209,
Section 1). "* * * shall examine the
physical and mental condition of such
persons and their record and family his-
tory. * * *"
New York Law of 1912 (Chapter 445, Sec-
tion 2). "* * * to examine into the
mental and physical condition and the record
and family history of the feeble-minded,
epileptic, criminal and other defective in-
mates. * * *"
North Dakota Law of 1913 (Chapter 56,
Section 4). "* * * shall diligently in-
quire into the mental and physical condition
of each inmate so considered, and as far as
practicable into his family history. * * *"
Kansas Law of 1913 (Chapter 305, Sec-
tion 1). "* * * shall examine the physi-
cal and mental condition of such inmate or
inmates, the history thereof so far as can
be, ascertained. * * *"
Michigan Law of 1913 (Act No. 34, Sec-
tion 3). "* * * shall examine the physi-
cal and mental condition of such persons and
their record and family history so far as the
same can be ascertained. * * *"
Iowa Law of 1913 (Chapter 187, Acts of
the Thirty-fifth. General Assembly, Section
1.) "* * * to examine into the mental and
physical condition, the records and family
history of the inmates. * * *"
California Law of 1913 (Chapter 363, Sec-
tion 1). "* * * and who is afflicted with
hereditary insanity.
* # #n
Nebraska Law of 1915 (Chapter 237, Sec-
tion 3). "* * * to examine into the
innate traits, the mental and physical condi-
tions, the personal records, and the family
traits and histories of all inmates. * * *"
Oregon Law of 1917 (Chapter 279, Sec-
tion 3). "* * * to examine into the
innate traits, the mental and physical condi-
tions, the personal records, and the family
traits and histories of all persons so re-
ported as far as the same can be ascer-
tained. * * •"
Kansas Law of 1917 (Chapter 299, Section
4). "* * * shall diligently inquire into
the mental and physical condition of each
inmate so considered, and as far as practica-
ble into his or her family history. * * *"
South Dakota Law of 1917 (Chapter 236,
Secton 1). "* * * to examine into the
mental and physical condition, the records
and family history of the inmates. * * *"
California Law of 1917 (Chapter 489, Sec-
tion 1). "* * * and who is afflcted with
mental disease which may have been in-
herited and is likely to be transmitted to
descendants.* * *"
Washington Law of 1921 (Chapter 53, Sec-
tion 2). "* * * to examine into the innate
traits, the mental and physical conditions,
the personal records, and the family traits
and histories of all persons so reported, so
far as the same can be ascertained * * *."
4. THE BIOLOGICAL CRITERIA FOR
DETERMINING THE APPLICABIL-
ITY OF THE LAW TO A PAR-
TICULAR INDIVIDUAL.
All of the laws state with more or less
precision what natural classes are to be
included within their scope, but as with all
laws, the determination of 'the application
in particular cases must be entrusted to
executive and judicial machinery. The law
also must lay down certain rules for the
guidance of its executive agents in determin-
ing what individual persons fall within this
class.
The logical plan for determining the
cugenical necessity for sexual sterilization is
of course to require pedigree studies, and to
provide further for the analysis of such
studies by persons skilled in the, modern
science of human genetics. A person within
the classes named and who by such a pro-
cedure is demonstrated to be a potential
parent of defectives, and who is to remail'
Analysis of the; Steriwzation Laws by Subject
105
in the population at large, should be sub-
jected to eugenical sterilization. It would
remain only for the administrative body to
determine the facts, after which the applica-
tion of the law should be automatically
effected by court orders.
Most of the existing laws leave much to
the discretion and judgment of their execu-
tive agents, without requiring pedigree
studies. An examination of the several
sterilization statutes reveals the following
situation :
1. INDIANA. "If, in the judgment of
this committee of experts and the board of
managers, procreation is inadvisable, and
there is no probability of improvement of the
mental and physical condition of the inmate,
it shall be lawful. * * *"
2. WASHINGTON. First Law: Steril-
ization may be ordered by the court in
certain cases, in its discretion. No standards
of hereditary degeneracy are laid down.
Second Law. "* * * if in the judgment of
a majority of the said Board (institutional
Board of Health) procreation by any such
person would produce children with an
inherited tendency to feeble-mindedness,
insanity, epilepsy, criminality or degeneracy,
and there is no probability that the condition
of such person so examined will improve to
such an extent as to render procreation by
any such person advisable, or if the physical
or mental condition of any such person will
be substantially improved thereby, then it
shall be the duty of said Board to make an
order directing * * * to perform * * * such
a type of sterilization as may be deemed
best • * •."
3. CALIFORNIA. First Law: The
Superintendent of an institution, at his dis-
cretion, calls into consultation the superin-
tendent of the state hospitals and the
secretary of the state board of health, who
examine into the particulars of the case, "and
if in their opinion, or in the opinion of any
three of them, asexualization will be bene-
ficial • • • they may perform the same.
• *.•" (Section 1.)
Second Law: Section 1 requires the care-
ful investigation of all circumstances of the
case, and provides for the same consultation
and opinion as the earlier statute.
Amendment to 'Second Law: This estab-
lishes additional standards for limiting the
selection of inmates for sterilization to those
suffering from certain types of hereditary
diseases.
The law establishing the Pacific Colony
in California permits the operation upon the
recommendation of a superintendent, ap-
proved by a clinical psychologist and a quali-
fied physician.
4. CONNECTICUT. In Connecticut the
board "* * * .shall examine the physical
and mental condition of such persons and
their record and family history, so far as the
same can be ascertained, and if the judgment
of a majority of said board, procreation by
any such person would produce children"
of a certain degenerate nature, "* * *
then said board shall appoint one of its
members to perform the operation * * *."
(Section 1.)
5. NEVADA. The court may, in its dis-
cretion, in passing sentence for certain crimes,
add the punishment of sterilization. There
are no legal requirements as to evidence of
hereditary degeneracy.
6. IOWA. First Law: This statute calls
upon the heads of institutions to examine
into the mental and physical condition of
the inmates "* * * with a view to deter-
mining whether it is improper or inadvisable
to allow any of such inmates to procreate
'■* * *," and to call into consultation the
members of the state board of parole. "The
members of such board and the managing
officers and the surgical superintendent of
such institutions shall judge of such
matters." (Section 1.)
Second Law: This statute follows the
first law of 1913 in this respect.
Third Law: Whenever the superintend-
ent of any hospital for the insane, and the
majority of his medical staff, after investiga-
tion and examination, agree that it is best
"* * * said operation shall be per-
formed." (Section 1.)
7. NEW JERSEY. According to this
statute, the superintendent of an institution
or the board of examiners itself may
"* • * take evidence and examine into
the mental and physical condition of such
inmates * * *" as are selected for the
particular examination. If the board unani-
mously finds "* * * that procreation is
inadvisable, it shall be lawful to perform
* * *" an operation of sterilization.
(Section 3.)
8. NEW YORK. The board of examin-
ers must "* * * examine into the mental and
physical condition and the family history"
of the inmates of institutions, "* * * and
106
Analysis of the Steriwzation Laws by Subject
if in the judgment of a majority of said
board procreation * * *" by any particular
inmate would produce defectives, the opera-
tion is authorized. (Section 351.)
9. NORTH DAKOTA. Whe;iever the
executive officer of an institution certifies in
writing "* * " thai: he believes that the
mental or physical condition of any inmate
would be improved * * *" by steriliza-
tion, or that procreation by such inmate
would produce defective children, it shall be
lawful to sterilize the particular inmate.
(Section 1.)
10. MICHIGAN. The board of the par-
ticular institution "* * * shall receive the re-
port of insanity experts, • * * examine the
physical and mental condition of such per-
sons and their , record and family history so
far as the same can be ascertained, and if
in the judgment of a majority of said board
procreation by such person would produce
* * *" defective offspring, the board may
direct sterilization.
11. KANSAS. The managing authority
of the institution shall examine the physical
and mental condition of the inmates and the
history thereof, so far as it can be ascer-
tained, and if in the judgment of such author-
ity procreation by any such inmate or in-
mates would produce children" of a degen-
erate nature, the said authority shall report
"* * * their conclusions with a recom-
mendation to the District court * * *.
The court shall thereupon hear and deter-
mine, the matter whether * * • the pur-
poses of this act will be accomplished by
such order * * *" for sterilization, and
"* * * shall adjudge that such operation
shall be perfdrmed." (Section 1.)
Second Law: The superintendent of a
custodial institution may certify in writing
to the governing board of the institution
that he "believes that the mental or physical
condition of any inmate would be likely to be
improved" by sterilization, and that the off-
spring of such inmate would be likely "to
result in defective or feeble-minded children
with criminal tendencies." The board of
examiners shall then "diligently inquire into
the mental and physical condition of each
inmate so considered and as far as practica-
ble into his or her family history, and for
that purpose any member of said board may
administer an oath to any witness whom it
is desired to examine." (Sections 1 and 4.)
13. WISCONSIN. In this state the board
of control submits to a body of experts thi
names of such inmates of institutions "whose
mental and physical condition they desire
examined, and said experts and the superin-
tendent of said institution shall meet, take
evidence and examine into the mental and
physical condition of such inmate * * *.
If such experts and superintendent unani-
mously find that procreation is inadvisable,
it shall be lawful to perform such operation
* * *" of sterilization. (Sections 2 and 3.)
13. ReBRASKA. The board of examin-
ers are directed to "examine into the innate
traits, the mental and physical conditions, the
personal records and the family traits and
histories'' of all inmates who are about to be
discharged or paroled from state institutions,
"* * * and if after a careful examination
and investigation such board of examiners
find that such inmate" is capable of bearing
or begetting children who would probably
"inherit a tendency to feeble-mindedness,
insanity or degeneracy, that such children
would probably become a social menace,
and that procreation by such inmate would
be harmful to society * * *," sterilization
may be ordered. (Section 3.)
14. OREGON. This statute requires that
the executive officers of institutions report
quarterly to the State Board of Eugenics all
inmates "* * * who are persons potential
to producing offspring, who because of the
inheritance of inferior or antisocial traits,
would probably become a social menace, or
a ward of the State.'' The State Board of
Eugenics shall "examine into the innate
traits and the mental and physical conditions,
the personal records and the family traits
and histories of all persons so reported
* * *" and shall have power to summon
witnesses and administer oaths, "and if in
the judgment of a majority of the said
Board procreation by any such person would
produce children * * *" of a degenerate
nature. "• * * then it shall be the duty
of said Board to make an order directing"
the sterilization of the particular inmate.
ir,. SOUTH DAKOTA. In this state the
law requires that the superintendent of the
state home for the feeble-minded "examine
into the mental and physical condition, the
records and family history of the inmates of
said institution with a view of determining
whether it is improper or inadvisable to
allow any such inmate to procreate, and to
make an annual report of said examinations
to the State Board of Charities and Correc-
tions." It is then the duty ofithe board to
Analysis of the Sterilization Laws by Subject
107
examine into the matter for the purpose of
determining "whether it is improper or in-
advisable to allow any such inmates to pro-
create * * *." The decision and order is
based upon the vote of the majority of the
board.
The Michigan statute recognizes the
necessity of expert examination and analysis
of reports in order to determine proper sub-
jects for eugenical sterilization. It also
recognizes the necessity of performing the
actual sterilizing operation by trained ex-
perts. (Section 3.) "In case an institution
has no physician at its head, authority is
given to the board of managers to cause
such operation to be performed, |to hire ex-
pert physicians to examine and report on the
condition of the subject, and to perform the
operation with such other assistants as may
be necessary: Provided, Before said opera-
tion is ordered there shall first be secured
from two physicians having qualifications
prescribed by law for examiners in insanity
a written statement or report that such oper-
ation is desirable in the interests of the
patient or the good of the community; and,
provided further, that these physicians shall
be allowed for their services the compensa-
tion fixed by the statutes for the examina-
tion and certification of an insane person.
The several sums necessary to carry out the
provisions of this act shall be certified to be
correct by the respective boards and shall
be paid out of the general fund of the State
upon the warrant of the auditor-general."
It is interesting to observe that in several
instances the law expects members of the
board of examiners, by investigating the
mental and physical condition of an inmate,
to be able to determine the nature of his
hereditary qualities. This, of course, is im-
possible. Not only must the individual be
given a thorough examination, but his pedi-
gree must be studied before, under the exist-
ing stage of genetical knowledge at least, it
is possible to determine the hereditary nature
of the propositus, and consequently possible
to designate any particular degenerate as a
proper subject for eugenical sterilization.
Provisions for the calling of witnesses and
the passing of expert opinion are valuable,
but the principal stress should be laid upon
requirements for family history studies and
their analysis by experts, in order to de-
termine whether a particular individual is,
within the definition of the standards set by
the law, a potential parent of socially inade-
quate offspring.
6. COURT PROCEDURE PROVIDED
BY THE SEVERAL STERIL-
IZATION STATUTES.
As elsewhere stated in these studies, the
executive agents of the several sterilization
laws have been given three types of pro-
cedure: First, executive or ministerial dis-
cretion. Second, hearing before or exami-
nation by a board or commission in a quasi-
judicial manner. Third, hearing and trial
before an established) court of law.
Court procedure is provided by the stat-
utes as follows:
1. INDIANA. No provision.
3. WASHINGTON. First Law: Steril-
ization may be imposed as an additional sen-
tence in certain criminal cases.
Second Law: The law requires that, after
careful investigation into the condition of
the subject inmate, the examining board
make separate written findings of each case
to be preserved in the records of the board
and a copy thereof furnished to the superin-
tendent of the institution where such inmate
is confined, upon which a copy of the order
of said board shall be served on such inmate
or his legal guardian. Any such inmate or
his guardian desiring to appeal from the
decision of the board may take an appeal
into the Superior Court, after filing an
informal notice thereof with the secretary of
said board within fifteen days of the date
when notice of the board's decision was
served. (Section 6.)
"Upon an appeal being taken, the secretary
of the said board where the notice of appeal
is filed, must within fifteen days thereafter, or
such further time as the court or the judge
thereof may allow, transmit a certified copy
of the notice of appeal and transcript of the
proceedings, findings and order of the board,
to the clerk of the court appealed to. The
trial shall be a trial de novo at law as pro-
vided by the statutes of the state, for the
trial of actions at law ' * *." (Section 7.)
"If the court or jury shall affirm the find-
ings of said board, said court shall enter a
judgment, adjudging that the order of said
board shall be carried out as herein pro-
vided; if the court fail to affirm the decision
of said board appealed from, then said order
shall be null and void and of no further
effect."
3. CALIFORNIA. First Law: No pro-
vision.
Second Law: No provision.
Amendment to Second Law and
108
Analysis of the Steriuzation Laws by Subject
Sterilization Provisions of Law Establish-
ing Pacific Colony. No provisions.
4. CONNECTICUT. No. provisions.
5. NEVADA. Sterilization may be im-
posed as an additional sentence in certain
criminal cases.
0. IOWA. First Law. No provisions.
Second Law. Section 2: "Those afflicted
with syphilis or epilepsy may apply to the
board of parole, or any judge of the dis-
trict court, and upon order of such board
or judge, the operation of vasectomy or
ligation of the fallopian tubes may be per-
formed upon such persons."
Third Law. No provisions.
7. NEW JERSEY. The law provides
for the examination of inmates of particular
institutions by a board of examiners who
may in their discretion find that procrea-
tion by the particular inmate would be inad-
visable. The law continues: (Section 3.)
"* * * previous' to said hearing the said
board shall apply to any judge of the Court
of Common Pleas, of the county in which
said person is confined, for the assignment
of counsel to represent the person to be
examined, said counsel to act at said hearing
and in any subsequent proceedings, and no
order made by said board of examiners shall
become effective until five days after it shall
have been filed with the clerk of the Court
of Common Pleas, of the county in which
said examination is held, and a copy shall
have been served upon the counsel appointed
to represent the person examined, proof of
service of the said copy of the order to be
filed with the clerk of the Court of Common
Pleas. All orders made under the provisions
of this act shall be subject to review by the
Supreme Court or any justice thereof, and
said court may upon appeal from any order
grant a stay which shall be effective until
such appeal shall have been decided. The
judge of the Court of Common Pleas
appointing any counsel under this act may
fix the compensation to be paid him, and it
shall be paid as other court expenses are
now paid. * * *"
8. NEW YORK. The law provides that
the board of examiners shall investigate the
particular cases and, if such board deter-
mines upon sterilization, the following pro-
cedure is provided: (Section 353.) ''The
board of examiners shall apply to any judge
of the Supreme Court or county judge of the
county in which said person is confined for
the appointment of counsel to represent the
person to be examined. Said counsel to act
at a hearing before the judge and in any
subsequent proceedings, and no order made
by said board shall become efifective until
five days after it shall have been filed with
the clerk of the court and a copy shall have
been served upon the counsel appointed to
represent the person examined and proof of
service of said copy of the order to be filed
with the clerk of the court. All orders made
under provisions of this act shall be subject
to review by the Supreme Court or any
justice thereof, and said court may upon
appeal from any order grant a stay which
shall be effective until such appeal shall have
been decided. The judge of the court ap-
pointing any counsel under this act may fix
the compensation to be paid him. No sur-
geon performing an operation under the
provisions of this act shall be held to account
therefor. The record taken upon the ex-
amination of every such inmate, signed by
the said board of examiners, shall be pre-
served by the institution where said inmate
is confined, and one year after the perform-
ance of the operation the superintendent or
other administrative officer of the institution
wherein such inmate is confined shall report
to the board of examiners the condition of
the inmate and the eflfect of such operation
upon such inmate, and a copy of 'the report
shall be filed with the record of the exami-
nation."
9. NORTH DAKOTA. No provisions.
10. MICHIGAN. In this state the
statute provides for investigations and, under
certain conditions, for the order for steriliza-
tion, after which the procedure is as fol-
lows: (Section 2.) "The boards of the afore-
said institutions and the physicians or sur-
geons in charge of each of said institutions
shall for each of their respective institutions
constitute a board, the duty of which shall
be to examine such inmates of said institu-
tions as are reported to them by the warden
or medical superintendent to be persons by
whom procreation would be inadvisable.
Such board shall receive the report of in-
sanity experts hereinafter mentioned, ex-
amine the physical and mental condition of
such persons and their record and family
history so far as the same can be ascer-
tained, and if in the judgment of. a majority
of said board procreation by any such per-
son would produce children with an inherited
tendency to insanity, feeble-mindedness,
Analysis of thb; Sterilization Laws by Subject
109
idiocy, or imbecility, and there is no prob-
ability that the condition of such person so
examined will improve to such an extent as
to render procreation by any such person
advisable, or if the physical or mental condi-
tion of any such person will be substantially
improved thereby, then said board shall
direct a competent physician or surgeon,
with such other assistants as may be neces-
sary, to perform the operation of vasectomy
or salpingectomy or any other operation or
improvement on vasectomy or salpingec-
tomy recognized by the medical profession,
as the case may be, upon such person. Such
operation shall be performed in a safe and
humane manner, and the board making such
examination, and the institution physician
or surgeon, shall receive no extra compensa-
tion therefor; Provided, That at least thirty
days' notice shall be given to the parents
or guardian of such person before the per-
forming of such operation; said notice to
specify the purpose, time and place of such
examination; Provided further, That when
said parents or guardian object to the per-
formance of such operation, then the ques-
tion of the sanity of such person shall be re-
ferred to the probate court of the county in
which the institution is located, where the
question of sanity and the necessity for this
operation shall be determined as in other
sanity cases before such courts."
11. KANSAS. First Law. This stat-
ute prgvides for investigation by the manag-
ing officers of institutions and, in case they
find sterilization applicable in the particu-
lar case, under the statute, then (Section 1)
"* * * said authority shall report their con-
clusions with a recommendation to the dis-
trict court or any court of competent juris-
diction in and for the district from which
such inmate or inmates has been committed
to such institution or institutions. The court
shall thereupon hear and determine the mat-
ter, and! if satisfied that :the subject is an
habltM criminal within the meaning of this
act, or is insane, an idiot, imbecile or an ep-
ileptic, and that the purposes of this act will
be accomplished . by such order, shall ad-
judge that such operation shall be performed,
and shall appoint one of the J authority sign-
ing sugh report to perform the operation of
vasecjjorny or oophorectomy, as the case
-may; be, upon such person. The county
attorney .of the county in which the hearing
is, had may be directed by the court to repre-
sent the state in the proceedings."
Second Law. No provisions.
13. WISCONSIN. No provisions.
13. NEBRASKA. No provisions,
14. OREGON. In this state the applica-
tion of the law is ministerial, unless the in-
mate nominated for sterilization desires to
appeal from the decision of the state board
of eugenics, in which case the statute makes
the following provisions; (Sections 6, 7,
and 8.) "Any such inmate desiring to appeal
from the decision of the said Board, or in
case the person is under guardianship or dis-
ability, then the guardian of said inmate may
take an appeal to the circuit court of , the
county in which the institution, in which
the inmate is confined, is located.
"An informal notice of appeal filed with
the secretary of said Board either by the in-
mate or some one in his behalf, shall be all
that is necessary to make the appeal; pro-
vided, said notice shall be filed within 15 days
of the date when notice of the Board's de-
cision is served on the inmate or his guard-
ian, and said notice of appeal shall stay all
proceedings of said Board in said matter un-
til the same is heard and determined on
said appeal; provided further, that no op-
eration shall be performed, upon any inmate,
until the time for appeal from the decision
of the Board has expired.
"Upon an appeal being taken, the secretary
of the said Board where the notice of ap-
peal is filed, must within fifteen days there-
after, or such further time as the court or
judge thereof may allow, transmit a certified
copy of the notice of appeal and transcript
of the proceedings, findings, and order of
the Board, to the clerk of the court appealed
to.
"The trial shall be a trial de novo at law
as provided by the statutes of the State, for
the trial of actions at law. Upon such ap-
peal, if the inmate be without sufficient
means to employ an attorney, then such at-
torney shall be compensated by the State
upon order of the court; and it shall be the
duty of the district attorney of the county
wherein such trial is had to represent the
said Board.
"If the court or jury shall affirm the find-
ings of said Board, said court shall enter a
judgment, adjudging that the order of the
said Board shall be carried out as herein
provided; if the court fail to affirm the de-
cision of said Board, appealed from, then
said order shall be null and void and of no
further effect."
no
Analysis of the Sterilization Laws by Subject
15. SOUTH DAKOTA. No provisions.
6. LEGAL COUNSEL FOR THE STATE
AND FOR PERSONS NOMINATED
FOR THE OPERATION UNDER
THE STERILIZATION STAT-
UTES.
1. NEW JERSEY. For the Defendant.
The board of examiners may apply to any
judge of the court of common pleas of the
county in which the defendant is confined
for the appointment of counsel to represent
such person. Compensation for such counsel
is fixed by the judge appointing him.
3. NEW YORK. For the Defendant.
The board of examiners may apply to any
judge of the supreme court or county judge
of the county in which the person nominated
for sterilization is confined for appointment
of counsel to represent such person. The
compensation "for such counsel to be deter-
mined by the judge appointing him.
3. NORTH DAKOTA. In this state the
procedure is ministerial rather than judicial,
nevertheless provision is made for the aid
of the state's law officers as follows: (Sec-
tion 8) "Whenever the state's attorney of
any county shall have reason to believe that
any person who shall be convicted of fel-
ony has been twice or more previously con-
victed of felonies in North Dakota and else-
where, it shall be the duty of such state's
attorney to investigate and to secure at the
expense of the county, transcripts of rec-
ords of conviction from other counties and
states and also such evidence of identifica-
tion as may be obtained. Such proof when
obtained shall be forwarded to the state
board of control, who shall thereupon noti-
fy the chief medical officers of the institu-
tion to which such person is committed and
the secretary of the state board of health,
and such case shall be dealt with in accord-
ance with the procedure stated in section 1
of this act."
4. MICHIGAN. No provisions.
5. KANSAS. (Section 1) "* " » the
county attorney of the county in which the
hearing is had may be directed by the court
to represent the state in the proceed-
ings " * *."
6. WISCONSIN. No provisions.
7. OREGON. The procedure is ministe-
rial in uncontested cases, but when contested
cases may be finally determined by the
courts of the state. The state board of eu-
genics "* * * shall have power to summon
witnesses and any member of said board
may administer an oath to any witness whom
it is desired to examine ' * *"
For the Defendant. In case the matter
comes before the courts for final decision
(Section 7) "* * * if the inmate be without
sufficient means to employ an attorney, then
such an attorney shall be compensated by
the state upon the order of the court.''
For the State. (Section 7) "* * *and it
shall be the duty of the district attorney of
the county wherein such trial is had to rep-
resent said board. * * *"
By implication, by custom, and by other
statutes governing the representation of the
state in contested cases, the attorney-gener-
al or the county attorneys of the states and
counties interested act as legal counsel in up-
holding the statutes and the boards or offi-
cers seeking to enforce it.
In the Model Law provision is made for
the appointment of legal counsel by the
court in case the person nominated for ster-
ilization is financially unable to provide
such counsel. The State Eugenicist and the
state's interests in applying the law are well
looked out for, so far as legal counsel is
concerned, by the attorney-general and the
county attorney of the county in which the
particular case arises.
8. WASHINGTON. The law of 1921
provides for legal counsel only in cases of
appeal.
For the Defendant. (Sec. 6) "* * * if the
inmate be without financial means to employ
an attorney, then the court shall appoint an
attorney to represent said inmate and' such
attorney shall be compensated by the State
upon order of the court."
For the State. "* * * it shall be the duty
of the district attorney of the county wherein
such trial is had to represent the said board."
7. IS THE CONSENT OF THE PA-
TIENT OR GUARDIAN A NECES-
SARY PREREQUISITE TO LEG-
AL EUGENICAL STERILIZA-
TION?
- Second California Law, 1909. ( Chapter
363, Sec. 1) "whether with or without the
consent of the patient * * *"
Michigan Law, 1913. (Act No. 34, Pub-
lic Acts, Sec. 2) "Provided, That at least
thirty days' notice shall be given to the
parents or guardian of such person before
the performing of such operation; said
notice to specify the purpose, time and place
Analysis of the Sterilization Laws by Subject
111
of such examination; Provided further,
That when said parents or guardian object
to the performance of such operation, then
the question of the sanity of such person
shall be referred to the probate court * * *"
Wisconsin Law, 1913. (Chapter 693, Sec.
4.) "Before such operation shall be per-
formed it shall be the duty of the state board
of control to give at least thirty days' notice
in writing to the husband or wife, parent or
guardian, if the same shall be known, and
if unknown, to the person with whom such
inmate last resided." i
Third Iowa Law, 1915 (Chapter 203, 36th
General Assembly, Sec. 1) "* * * and pro-
vided further, that the superintendent of
the hospital shall have secured the
written consent of the husband or wife, if
the patient is a married person, and if an un-
married person, the written consent of the
parent, guardian or next of kin, if there be
within this state, that said operation shall
be performed."
Nebraska Law, 1915. (Chapter 237, Sec.
4) "Before any such operation shall be per-
formed, the nature, character and consequen-
ces of such operation shall be fully explained
to such inmate and to the husband, wife, par-
ent, guardian, or nearest of kin of such in-
mate and no such operation shall be per-
formed without the written consent of such
husband, wife, parent, guardian, or nearest
kin, as the case may be, and the assent of
such inmate so far as said inmate is capable
of assenting thereto."
Amendment to the Second California Law,
1917. (Chapter 489, Sec. 1) "whether with
or without the consent of the patient * * *"
California Law Establishing Pacific Col-
ony, 1917. (Chapter 776, Sec. 42) "whether
with or without the consent of the inmate
I
Oregon Law, 1917. (Chapter 279, Sec. 5)
"* * * and if an operation is deemed neces-
sary by said Board, then a copy of the or-
der of said Board shall forthwith be served
on said inmate, or in the case of an insane
person upon his legal guardian, and if such
insane person have no legal guardian then
upon his nearest known kin within the State
of Oregon, and if such person have no
knoWn kin within the State of Oregon, then
upon the custodian guardian of such insane
person •* *",
Kansas Law, 1917. (Chapter 305, Sec. 1)
"* * * but before such operation shall be
performed a written notice shall be served
on such inmate, and guardian, if there be
one, of the time and place of a meeting and
hearing at least thirty days prior thereto;
and said inmate shall have the right to be
represented by counsel and may introduce
such evidence as may be desired * * *"
Washington Law, 1921 (Chapter 53, Sec.
4). "* * * if an operation is deemed neces-
sary by said board, then a copy of the order
of said board shall forthwith be served on
said inmate, or in the case of an insane
person, upon his legal guardian, and if such
insane person have no legal guardian, then
upon his nearest known kin within the State
of Washington, and if such insane person
have no known kin within the State of Wash-
ington, then upon the custodian guardian of
such insane person."
8. TYPE OF OPERATION AND
MANNER OF ITS PER-
FORMANCE.
In eugenical sterilization the principal
object is permanently to destroy the repro-
ductive function of the individual. In the
male, there are two common operations —
first, the less serious one known as vasec-
tomy, which consists in removing a short
section of each of the vasa deferentia. This
may be performed without anaesthetic in
a few minutes by a competent surgeon, with
less pain to the subject than accompanies
the pulling of a tooth. With local anaes-
thetic it is accompanied by practically no
pain or distress to the patient. Second, the
more radical operation is castration; this re-
quires hospital attention and consists in the
complete removal of the testes.
In the female the surgical operations for
sexual sterilization are much more serious
than in the male, because all the former op-
erations require the opening of the abdom-
inal cavity. Consequently the sterilization
of the female calls for much more skill and
care, and also for more time for conval-
escence, than are required in sterilizing the
male. The less radical of the operations in
sterilizing the female is known as salping-
ectomy, which consists in removing a sec-
tion of the Fallopian tubes (oviducts.) The
more radical operations are known as
oophorectomy (or ovariotomy) and uterec-
tomy (or hysterectomy.) The former con-
sists in removing the ovaries; the latter in
removing the uterus.
If the sole object of these operations is
eugenical, that is, no subsidiary therapeutic
112
Analysis op the Sterilization Laws by Subject
value is i sought, logically enough the opera-
tion should be of the minimum radicalness
required under the existing stage of surgi-
cal advance, permanently to destroy the re-
productive functions. Such operations con-
sist in the male of vasectomy, and in the fe-
male of salpingectomy. A simpler operation
could hardly be desired for the male, but
for the female it is greatly to be hoped that
surgical science will soon develop a less
radical method whereby sexual sterility may
be wrought. Although sterilization is much
more serious surgically in the female than
in the male, there is one compensation. Much
more frequently in the female than in the
male the need for abdominal surgery for
therapeutic purposes is present, consequently
quite often in the female the therapeutic val-
ue of an abdominal operation may be
achieved as an accompaniment to sexual
sterilization.
It is suggested that scarifying the horns
of the uterus and thus effecting sterilization
by occluding the terminal openings of the
Fallopian tubes may be developed surgically
to the point of practicability. Because such
an operation I would not involve the opening
of the abdominal cavity, it would provide
for females an operation comparable in sim-
plicity with vasectomy in the male.
X-rays, which are known to destroy cer-
tain tissues, are being successfully employed
experimentally for sexual sterilization. But,
like scarifying the horns of the uterus, sur-
gical technique has not yet developed this
agency to the point of general practical
value. Thus while surgical science is work-
ing upon the problem, it has as yet produced
nothing practicable that is simpler than vas-
ectomy in the male and salpingectomy in the
female. But even if much simpler methods
should be developed, it would appear the part
of wisdom to write the law wide enough to
permit the application of that particular
method for effecting sterility which in each
case would be best adapted to the thera-
peutic needs of the individual, and which in
the light of the existing methods of approved
surgery, would in each case prove the least
serious surgically.
Many of the laws quite properly require
that the operation of sexual sterilization be
effected "in a safe and humane manner." This
again is a provision which might well be in-
cluded within the model sterilization statute,
because it is an additional safe-guard around
the rights of the particular individuals who
are subjected to actual sterilizing operations.
The following is a series of literal ab-
stracts of the several statutes in reference to
the surgical type of operation 'and the man-
ner of its performance:
1. INDIANA. "* * * it shall be law-
ful for the surgeons to perform such an
operation for the prevention of procreation
as shall be decided safest and most effec-
tive."
2. WASHINGTON. First Law. "* * *
an operation * * * for the prevention of pro-
creation."
Second Law "* * * such surgical oper-
ation as may be specified in the order of the
Institutional Board of Health. All such
operations shall be performed with a due
regard for the physical condition of the in-
mate and in a safe and humane manner."
3. CALIFORNIA. First Law, Section
1. "* * ** if in their opinion * * * asexual-
ization will be beneficial to such inmate, pa-
tient or convict, they may perform the
same; * * *"
Second Law, Section 1. "* * * the state
commission in lunacy may * * * cause such
a person to be asexualized * * *"
4. CONNECTICUT. Section 1. "* * *
said board shall appoint one of its members
to perform the operation of vasectomy or
oophorectomy * * *. Such operation shall
be performed in a safe and humane man-
ner
5. NEVADA. "* * * direct an operation
to be performed upon such person for the
prevention of procreation; provided the op-
eration so performed shall not consist of cas-
tration."
6. IOWA. First Law, Section 1. "***
then the surgeon of the institution shall per-
form the operation of vasectomy or ligation
of the Fallopian tubes, as the case may be,
upon such person."
Second Law, Section 1. "* ' * then the
physician of the institution, or one selected
by him, shall perform the operation of vas-
ectomy, or ligation of the Fallopian tubes, as
the case may be, upon such person."
Third Law, Section 1. "* " * they are
hereby authorized to perform or cause to
be performed by sorrve capable physician or
surgeon, the operation of sterilization * *
Section; 2. "The operation to be per-
formed upon a male person shall be what
is known as vasectomy, and upon a female
person what is known as a section of the
Fallopian tubes with implantation in the
uterine muscles."
Analysis oe' the Sterilization Laws by Subject
113
U# # -H
7. NEW JERSEY. Section 1.
it shall be lawful to perform such opera-
tion for the prevention of procreation as
shall be decided by said board of examiners
to be most effective * * *"
8. NEW YORK. Section 351. "* * *
then said board shall appoint one of its
members to perform such operation for the
prevention of procreation as shall be decided
by said board to be most effective * * *"
9. NORTH DAKOTA. Section 1.
"* * * it shall be lavirful to perform a sur-
gical operation for the sterilization of such
inmate * * *"
Section 5. "* * * shall designate some
skilled surgeon, who may not be one of their
own number, who shall perform it."
10. MICHIGAN. Section 1. "* * * to
render incapable of procreation by vasec-
tomy or salpingectomy, or by the improve-
ment of said surgical operation which is
least dangerous to life and will best accom-
plish the purpose, * * *."
Section 2. "* * * then said board shall
direct a competent physician or surgeon,
with such other assistants as may be neces-
sary, to perform the operation of vasec-
tomy or salpingectomy, or any other opera-
tion or improvement on vasectomy or sal-
pingectomy recognized by the medical pro-
fession, * * *. Such operation shall be per-
formed in a safe and humane manner, * * *"
11. KANSAS. First Law, Section 1.
"* * * and shall appoint one of the author-
ity signing such report to perform the op-
eration of vasectomy or oophorectomy, as
the case may be, * * *. Such operation shall
be performed in a safe and humane man-
ner, * * *"
Second Law, Section 5. "* * * if a male
person, either the operation of vasectomy
or asexualization; if a female, either the
operation of salpingectomy or oophorec-
tomy; and shall designate some competent
surgeon, who may either be connected with
such institution or otherwise, who shall per-
form the operation."
12. WISCONSIN. Section 3. "* * *
"that such operation be performed for the
prevention of procreation as shall be de-
cided safest and most effective * * *"
13. NEBRASKA. Section 3. "* * *
that such operation be performed for
the prevention of procreation as in the judg-
ment of said board of examiners shall be
most appropriate to each individual case."
14. OREGON. Section 3. "* * * to
perform or cause to be performed upon such
inmate such a type of sterilization as may
be deemed best by said board."
Section 4. "* * * and no person shall be
emasculated under the authority of this Act
except that such operation shall be found
necessary to improve the physical, mental,
neural, or psychic condition of the inmate."
Section 9. "* * * all operations shall be
performed with due regard for the physical
condition of the inmate, and in a safe and
humane manner."
15. SOUTH DAKOTA. Section 2.
"* * * then the physician of the institution,
or one selected by him, shall perform the
operation of vasectomy or ligation of the
Fallopian tubes, as the case may be * * *"
9. BAD BIOLOGY IN THE EUGENI-
CAL STERILIZATION STATUTES.
In many of the sterilization laws there is
a phrase evidently intended to throw an ad-
ditional safeguard around the individual in
securing him against unjust and uneugenical
sterilization. It is that phrase which implies
that an individual may, because of his con-
dition, be today a potential parent of de-
fectives and undesirables, and in the future,
on account of some recovery, may become
so changed that parenthood on his or her
part becomes desirable for the state. This is
equivalent to saying that an individual may
be a mongrel today and a thoroughbred to-
morrow, which, of course, is contrary to
all practical observation and to all biologi-
cal teaching. There may be medical and
social reasons why a person is an undesir-
able procreator today and a desirable one
tomorrow — in such cases there should be
medical or social treatment, not eugenical
sterilization — but so far as hereditary traits
are concerned, there is no such change. Eu-
genical sterilization can be justified only
on the grounds of hereditary and constitu-
tional degeneracy. Once a degenerate, so
far as hereditary qualities are concerned, al-
ways a degenerate.
If both the literal and implied motives
of these laws were purely therapeutic, then,
because an individual who is diseased today
might recover so as to make procreation
medically or hygienically desirable on his
part, the phrase would be understandable,
but even in such cases it would have no legal
use because no surgeon now hesitates, on
account of legal restraint, to perform, for
114
ANAI.YSIS OF THE Sterilization Laws by Subject
purely therapeutical reasons, an operation
which incidentally results in procreative ster-
ility.
The phrases run as follows:
Indiana Law of 1907 (Chapter 315) "* * *
and there is no probabilty of improvement
of the mental and physical condition of the
inmate * * *"
Connecticut Law of 1909. (Chapter 209,
Sec. 1) "* * * and there is no probability
that the condition of any such person so
examined will improve to such an extent
as to render procreation by any such person
advisable * * *"
Iowa Law of 1911. (Chapter 139, Thirty-
fourth General Assembly, Sec. 1) "* * * and
there is no probability that the condition of
any such inmate so examined will improve
to such an extent as to render procreation'
by any such inmate advisable. * * *"
New Jersey Law of 1911. (Chapter 190,
Sec. 3) "* * * and there is no probability
that the condition of such inmate so exam-
ined will improve to such an extent as to
render procreation by such inmate advis-
able * • •"
New York Law of 1912. (Chapter 49,
Laws of 1909, as amended by Sec. 351 of
Chapter 445.) "* * * and there is no prob-
ability that the condition of any such person
so examined will improve to such an extent
as to render procreation by any such person
advisable * * •"
North Dakota Law of 1913. (Chapter 56,
Sec. 1) "* • • and that the condition of
such inmate is not likely to improve so as
to make procreation by any such person
desirable or beneficial to the commun-
ity • * •"
Kansas Law of 1913. (Chapter 305, Sec.
1) "* * • and there is no probability that
the condition of any such inmate or inmates
so examined will improve to such an ex-
tent as to render procreation by any such
inmate or inmates advisable * * *"
Michigan Law of 1913. (Public Act 34,
Sec. 2) "* * • and there is no probability
that the condition of such person so exam-
ined will improve to such an extent as to
render procreation by any such person ad-
visable • • •"
Oregon Law of 1917. (Chapter S79, Sec.
3) "* * * and there is no probability that
the condition of such person so examined
will improve to such an extent as to render
procreation by any such person advis-
able • • •"
Kansas Law of 1917. (Chapter 299, Sec.
1) "* * * and that the condition of such
inmate is not likely to improve so as to
make procreation by such person desirable
or beneficial to the state * * *"
Evidently this false idea and objectionable
expression have been copied from statute
to statute. Because they are founded on
biological misconceptions they should be
dropped from future laws. The matter of
human heredity is much more deeply seated
than a passing condition which may make
an individual a parent of good pedigree to-
day and one of undesirable hereditary traits
tomorrow.
10. THE MANDATORY AND OPTION-
AL ELEMENTS IN THE SEVER-
AL STERILIZATION LAWS.
If a law is meant to be compulsory, then
of course there must be no gaps in its chain
of mandates, which begins with the order
for the appointment of executive officers,
and ends with the actual surgical operation
of sterilization. A single "'may'' inserted
in the chain of execution makes the whole
procedure an optional, or at lea%t a non-com-
pulsory one. The principal elements in the
chain are: (l) The appointment of execu-
tive agents: (2) the examination of indi-
viduals alleged to be subject to the act; (3)
the determination of the facts in particular
cases, whether the particular person is sub-
ject to eugenical sterilization; (4) the or-
der for the actual sterilizing operation.
Which statutes require eugenical ster-
ilization, and which make it optional on the
part of the executive agents? By thus com-
paring what the laws order, with what their
executive agents have done, we arrive at
a judgment concerning the effectiveness of
the execution of the law in different states,
and may be able also to locate the particular
weak points in the chain of statutory order
and practical execution. Finally, such an
analysis may aid in drafting a successful act
whose intent is mandatory.
1. INDIANA, 1907. The law provides
for the compulsory appointment of a com-
mittee of experts in each institution, whose
duty it shall be to examine the condition of
inmates recommended for sterilization. If
this committee decides in favor of the ster-
ilization of the inmate, "* * * it shall be
lawful for the surgeons to perform such op-
eration for the prevention of procreation as
shall be decided safest and most effective."
Chap. 215, Laws of 1907.
Anai,ysis of thu Stdriwzation Laws by Subject
115
a. WASHINGTON, 1909. As a puni-
tive measure for criminals and rapists, "
the court may direct an operation to be
performed upon such a person for the pre-
vention of procreation ." Chap. 240, sec.
35, Criminal Code, Lavirs of 1909.
Second Sterihzation Law, 1981. "It shall
be and is hereby declared the duty of the
superintendents, of all state institutions hav-
ing the care of individuals held in restraint
to report quarterly to the Institutional Board
of Health, all feeble-minded, insane, etc.,
* * * then it shall be the duty of said Board
to make an order directing the super-
intendent of the institution in which such
inmate is confined to perform or cause to be
performed upon such inmate such a type of
sterilization as may be deemed best by said
Board."
But, like the law of Oregon, this statute-
provides for a possibility of such inmate, his
legal guardian or nearest kin to appeal from
the decision of the Board within fifteen days
from date of notice served upon him.
3. CALIFORNIA, (a) First Steriliza-
tion Law, 1909, provides that a resident
physician of an institution, together with
the superintendent of the institution and
the secretary of the state board of health,
may constitute a board to determine wheth-
er asexualization will be of physical, mental,
or moral benefit to an inmate; if they decide
in favor of asexualization, " ihey may
perform the same " Chap. 730, Sec. 1,
Laws of 1909.
(b) Second Sterilization Law, 1913, Chap.
363.
Sec. 1 provides that the state commission
in lunacy " may cause to be asexual-
ized " before his or her release or dis-
charge from an institution, any person in
a state hospital for the insane afflicted with
hereditary insanity or incurable chronic
mania or dementia.
Sec. 3 applies to convicts in state prisons,
and provides tha-t in the case of recidivists
who, in the judgment of a board of physi-
cians, will be benefited by such operation,
the board " may perform the same "
Sec. 3 provides that any idiot, if a minor,
"may be asexualized ." If an adult, by the
consent or request of the parent or guardian
of such idiot, the superintendent of a state
ho^ital " shall perform such opera-
tion ."
(c) Amendment to Second Sterilization
Law, 1917. Sec. 1 provides that the state
commission in lunacy " ^may cause
to be asexualized " before his or her
release or discharge from a state hospital
for the insane, any person of the class
described, comprising those afflicted with
hereditary mental disease, feeble-mindedness
or syphilis. (Chapter 489, Sec. 1, Laws of
1917.)
(d) Sterilization Provision establishing
the Pacific Colony, Sec. 43, Chapter 776,
Laws of 1917. This provides that before
the release or discharge of an inmate of the
Pacific CoTony who is feeble-minded or af-
flicted with incurable chronic mania or de-
mentia, the board of trustees, etc., after a
careful investigation, " may cause such
person to be sterilized; and such steriliza-
tion shall be lawful ."
4. CONNECTICUT, 1909. The state
prison and the hospitals for the insane are
directed to appoint boards of examination,
and in the case of inmates by whom proc-
reation is judged inadvisable, " — said board
shall appoint one of its members to perform
the operation ." (Chap. 309, sec. 1, Pub-
lic Acts 1909.)
5. NEVADA, 1911. In punishment for
the crime of rape, " the court may
direct an operation to be performed upon
such person for the prevention of procrea-
tion." (Section 38 of the Crimes and Pun-
ishment act.)
6. IOWA, (a) First Sterilization Law,
1911. The state board of parole, in con-
junction with the managing officer or super-
intendent of each institution, shall examine
into the condition of inmates of these insti-
tutions, and if they decide that procreation
is inadvisable, or that an operation will be
beneficial, " the surgeon of the institu-
tion shall perform the operation " Also
certain classes of convicts or inmates of in-
stitutions, as prostitutes, sexual offenders,
etc., " shall be subjected to this same
operation ' (Chapter 139, Sec. 1, Acts
of the Thirty-third General Assembly.)
(b) Second Sterilization Law, 1913 Sec.
1 provides as above for a board of examiners
and provides that, when such a board shall
determine a person to be unfit to procreate,
" then the physician of the institution
shall perform the operation upon such
person ."
Sec. 3 is in regard to operatiops upon ap-
plication, and provides that those afflicted
with syphilis or epilepsy "may apply to
the board of parole " " and upon or-
116
Anai^ysis of the Sterilization Laws by Subject
der the operation may be performed
upon such person ." (Chap. 187, Acts of
the Thirty-fourth General Assembly.)
(c) Third Sterilization Law, 1915, pro-
vides that when the superintendent and ma-
jority of the staff of a hospital for the in-
sane agree that it is for the best interests
of the patient and society, and provided that
the individual and his or her family con-
sent, " ^they are hereby authorized to per-
form the operation of sterilization on
any such patient ."(Chap. 203, Section 1,
Laws of the Thirty-sixth General Assembly.)
7. NEW JERSEY, 1911. If, after ex-
amination, the board of examiners and chief
physician of an institution find that pro-
creation on the part of an inmate is inadvis-
able, " — it shall be lawful to perform such
operation ." But first the law provides
for appointment of counsel, etc., and makes
the order of the board of examiners sub-
ject to review by the Supreme Court. (Chap.
190, Sec. 1, Laws of 1911.)
8. NEW YORK, 1912. The law pro-
vides for the appointment of a board of ex-
aminers with authority to determine wheth-
er an inmate of an institution should, either
for his own good or that of society, be ster-
ilized. If procreation in the case of such
inmate is deemed inadvisable, " said
board shall appoint one of its members to
perform such operation for the prevention
of procreation ." Here as in the New
Jersey law, the appointment of counsel is
provided for. (Article 19 of Chapter 49,
Laws of 1909, as amended by Chapter 445,
Laws of 1912.)
9. NORTH DAKOTA, 1913. Chapter 56,
Sec. 1, provides that when procreation by an
inmate of a state institution shall be deemed
inadvisable, " it shall be lawful to per-
form a surgical operation for the steriliza-
tion of such inmate as hereafter provided."
The law further provides for a board of
examiners, and in Section 5 provides that if
this board order such operation, "it shall
designate some skilled surgeon who shall
perform it."
Section 7 deals with inmates who request
the performance of such operation, or give
their consent thereto in writing, and pro-
vides that in such cases the chief medical
officer of an institution " may perform
such operation without bringing the
10. MICHIGAN, 1913. Act No. 34,
Public Acts 1913.
Section 1 authorizes the operation to pre-
vent procreation to be performed on men-
tally defective or insane inmates of public
institutions.
The boards and physicians of such institu-
tions shall determine what inmates are
persons by whom procreation would be in-
advisable, and in such cases " said
board shall direct a competent physician or
surgeon to perform the operation
upon such person ." (Section
2.)
11. KANSAS.
(a) First Sterilization Law, 1913 (Chap.
305, pp. 535-526.) Section 1 of this act pro-
vides that the managing officers of all state
institutions shall, with the assistance of
competent surgeons, examine inmates who
in their opinion should not be allowed to
procreate, and report the result of such ex-
amination to a court, with a recommendation
to such court. If the court, after a hearing,
determines that the purpose of the act will
be fulfilled by such an operation, they
" shall adjudge that such operation
shall be performed, and shall appoint one of
the authority -to perform the opera-
tion. "
(b) Second Sterilization Law, 1917.
(Chap. 299.)
Section 1 provides that in the case of
inmates of institutions whose physical or
mental condition would be iikdy to result
in defective or feeble-minded children with
criminal tendencies, " it shall be lawful
to perform a surgical operation for the steril-
ization of such inmate ."
Section 5 provides that the board of ex-
aminers, after making full inquiry into the
condition of the inmate, if sterilization be
ordered, " shall designate what
operation is to be performed and shall
designate some competent surgeon
who shall perform the operation ."
matter to the attention of such board of
examination ."
12. WISCONSIN, 1913. (Chap. 693,
Sec. 3.) The law in this state provides that
the state board of control shall appoint a
committee of experts to examine inmates of
institutions, and if such experts and the
superintendent of the institution find procre-
ation to be inadvisable on the part of an
inmate, " it shall be lawful to perform
such operation for the prevention of procre-
ation as shall be safest and most
effective ."
Analysis of the Sterilization Laws by Subject
117
13. NEBRASKA, 1916. (Chap. 237.)
Before the discharge or parole of any in-
mate of an institution for feeble-minded or
insane, a board of examiners shall determine
whether or not procreation by such inmate
would be harmful to society, and if such
is decided to be the case, " it shall be
a condition prerequisite to the parole or
discharge of such inmate that said inmate
be made sterile, and that such operation be
performed for the prevention of procreation
." (Sec. 3.)
14. OREGON, 1917. (Chap. 279.) This
statute provides for the establishment of a
State Board of Eugenics, to whom the super-
intendents of state institutions shall report
all inmates who are in their judgment poten-
tially capable of producing offspring likely
to become a social menace or wards of the
State. The State Board of Eugenics shall
examine such reported inmates, and when
they consider procreation inadvisable, they
shall order the superintendent of the institu-
tion in which such inmate is confined to
" perform or cause to be performed
upon such inmate such a type of sterilization
as may be deemed best by said Board."
(Sec. 3.) But before such order can be car-
ried out, a copy shall be served on said
inmate, or his guardian, and fifteen days
shall be allowed for the inmate to appeal
from the decision of said Board (Sec. 6).
After the time for appeal has expired, or
in case the inmate has appealed and the
order has been affirmed by a judgment of
the court, " it is hereby made his (the
superintendent of the institution's) lawful
duty to perform such surgical opera-
tion as may be specified ." (Sec, 9.)
15. SOUTH DAKOTA, 1917. (Chap.
236.) The State Board of Charities and Cor-
rections, together with the superintendent of
the State Home for Feeble-Minded Persons,
shall determine whether any inmates should
not be allowed to procreate, and in such
cases " the physician of the institution
shall perform the operation upon
such person." (Sec. 2.)
11. SEXUAL STERILIZATION OF
CRIMINALS.
It would be unfortunate indeed if crimi-
nologists, the public, or the courts associated
eugenical sterilization more closely with
criminalistic individuals than with the in-
sane, the feeble-minded, or any other of the
ten types of socially inadequate individuals
which comprise the whole range of socially
unadapted types. A criminal is a person
who has been convicted of crime. Crime is
arbitrarily defined by the legislative author-
ity of the State. A criminal may, or may
not, be a degenerate. On the other hand
the term criminalistic is biological and social
rather than legal. It means an individual
who, regardless of the nature of the statu-
tory laws of the state or the freedom or
incarceration of the subject himself, is anti-
social in his instincts and conduct to a
degree which renders him a willful or at
least a careless menace to the community.
If one could prove that a given individual
youth, before puberty, would upon maturity
become a rapist or a sexual pervert, and that
such tendencies were hereditary, society
would be justified in sterilizing such indi-
vidual, as a preventive measure, because the
removal of the sex-gland before puberty
stops the development of sex-impulses.
Eugenical interests would be served if, in
such cases degenerate inheritance lines were
cut off, and current society would be pro-
tected against the anti-social conduct of the
individual operated upon. But, to vasec-
tomize or castrate an adult for the purpose
of destroying his or her sex impulses is
without purpose, because such operations
upon adults destroy neither the sex-impulses
nor the capacity for coitus.
The science of internal secretions is still
in its infancy. Ultimately this department
of physiology may have something to con-
tribute which will be of service to criminol-
ogists and social agencies which seek to
govern impulses by controlling internal se-
cretions. Thus, the therapeutic promise of
sterilization is not great enough to justify
its widespread use. There is, however, a
modicum of control over the impulses to be
derived from castration, which small per-
sonal and social benefit could be well con-
sidered as a secondary matter in determining
upon the particular type of sterilization in a
given case in which eugenical sterilization
has been decided upon. For this reason in
the model law the State Eugenicist is given
authority to decide upon the particular type
of sterilizing operation or treatment, in
order that he may, in consultation with
medical authorities, select that particular
type which, as the law states, will give due
consideration to possible therapeutic benefit.
For eugenical purposes the legal term crim-
inal carries little meaning, but criminalistic
connotes an hereditary degenerate make-up.
Only those persons who constitute the latter
118
Analysis of the Sterii<izatton Laws by Subject
class should be included within the operation
of a eugenical sterilization statute. The lack'
of a clean-cut understanding of the distinc-
tion between criminal and criminalistic, but
at the same time a vague appreciation of its
truth, has caused several states to attempt
to apply eugenical sterilization to a certain
type of criminals determined, not by scien-
tific pedigree studies, but by a certain
number and kind of convictions under the
criminal laws. The enactments of the several
states in this regard follow:
1. INDIANA: The law applies to insti-
tutions ''entrusted with the care of confirmed
criminals, idiots, rapists and imbeciles."
There is no special reference to the expecta-
tion of criminalistic tendencies on the part
of the potential offspring of such inmates.
3. WASHINGTON: The first law in
Washington meant to reach degenerates by
applying to habitual criminals and to persons
"adjudged guilty of carnal abuse of a female
person under ten years of age, or of rape."
The Second Statute of Washington applies
to habitual criminals, who have been con-
victed three or more times of a felony, moral
degenerates and . sexual perverts. In this
second law the application to criminalistic
persons is not punitive, but this class are
included when, in particular cases, they are
shown to be hereditary degenerates.
3. CALIFORNIA: The first California
statute selected for sterilization from the
state prisons inmates committed for life, and
those showing sexual or moral perversions,
or twice committed for sexual offense, or
three times for other crimes.
The second California statute makes any
recidivist lawfully confined in a state prison
liable to the asexualization act.
4. CONNECTICUT: In Connecticut
the law legalizes the sterilization of inmates
of the state prison and insane hospitals "if,
in the judgment of the majority of said
board, procreation by any such person would
produce children with an inherited tendency
to crime * * *."
5. NEVADA: The Nevada statute fol-
lows the wording of that of Washington by
applying to habitual criminals and persons
"adjudged guilty of carnal abuse of a female
person under ten years of age, or of rape."
6. IOWA: The second Iowa statute
made sterilization mandatory in case of per-
sons twice convicted of felony, or of sexual
oflfense other than white slavery, for which
latter offense one conviction was sufficient
to make sterilization compulsory.
The third sterilization law of Iowa omits
all reference to institutions for the criminal
classes, and criminalistic tendencies in pos-
sible offspring.
7. NEW JERSEY: In New Jersey the
criminals who come within the operation of
the law are "those who have been convicted
of the crime of rape, or of such succession
of offenses against the criminal law as in
the opinion of the board of examiners shall
be deemed to be sufficient evidence of con-
firmed criminal tendencies."
8. NEW YORK: The New York
statute in reference to criminals follows the
exact wording of the New Jersey law.
9. NORTH DAKOTA: The steriliza-
tion law of North Dakota applies to the in-
mates of state institutions for the feeble-
minded, insane and criminal classes, procre-
ation by whom would, in the opinion of the
board, "be likely to result in defective or
feeble-minded children with criminal tenden-
cies * * *."
10. MICHIGAN: The Michigan statute
makes no direct reference to criminals or
criminalistic tendencies.
11. KANSAS: The first sterilization
law applies to state institutions for the in-
sane, feeble-minded, epileptic, and habitual
criminals, and authorizes the sterilization of
the particular inmates of such institutions by
whom, in the judgment of the authorities,
procreation would "produce children with
an inherited tendency to crime * * *."
The second sterilization law of Kansas
follows the wording of the first in reference
to criminality.
12. WISCONSIN: The statute is ap-
plicable to criminals on the same basis as to
the insane, feeble-minded and epileptic, with
no special reference to criminalistic tenden-
cies expected in the potential offspring.
13. NEBRASKA: The law applies to
feeble-minded and insane inmates of peni-
tentiaries, reformatories and industrial
schools on the same terms as to inmates of
institutions for the feeble-minded and insane.
14. OREGON: The law applies to
habitual criminals, moral degenerates and
sexual perverts on the same terms as to
other classes of the socially inadequate, and
includes among the types of possible chil-
dren, the birth of which it seeks to prevent,
those with an inherited tendency to "crimi-
nality or degeneracy.''
Analysis of the Sterilization Laws by Subject
119
15. SOUTH DAKOTA: The statute
makes no reference or allusion to institutions
for the criminal classes, nor to criminality.
The application of sterilization to criminals
in any manner which partakes in the least
of the nature of punishment is repugnant
to the spirit of American institutions, and is
apt to work eugenical injury as well as
eugenical benefit. The inmates of institu-
tions for the criminal classes should be sub-
ject to eugenical sterilization laws on the
same terms as inmates of institutions for all
other types of custodial care, and members
of the population at large, who, as the result
of scientific pedigree studies, are proven to
be potential parents of socially handicapped
or unadapted offspring.
Comment: Crime and Sterilization
In Iowa the law was declared to be a
bill of attainder because it selected by legis-
lative enactment for punishment certain indi-
viduals of a very limited class/ It was
ex post facto because it was apparently ap-
plicable to persons twice convicted of certain
offenses in which cases one of the offenses
at least might have been committed before
the enactment of the law. It placed the indi-
vidual "twice in jeopardy of life or limb"
because it applied to criminals as an addi-
tional punishment, after they had been duly
convicted of crime. If sterilization in Iowa
had been ordered as a part of the original
judgment and sentence, then the only basis
for attack under the bill of rights would
have been "cruel and unusual punishment."
In Nevada the law was not attacked on
the grounds which rendered the Iowa statute
invalid, but was declared unconstitutional
because the constitution- of Nevada forbids
"cruel and unusual punishment."
In Washington the first law (exactly the
same as that in Nevada), was upheld because
the constitution of Washington forbids only
"cruel punishment." Sterilization in Amer-
ica, if not cruel, is certainly unusual.
The second law applies to criminals as a
degenerate class, and is not carried out as a
punitive measure, nor connected with any
sentence.
There is always danger in these special-
ized sterilization laws applicable only to
limited criminal classes, that the provision
forbidding "class legislation" will be trans-
gressed. Eugenical sterilization must, more-
over, eliminate all signs and suggestions of
punishment. Its motive is solely race better-
ment. It is highly probable that no court in
the land would declare a sterilization statute
unconstitutional on the grounds of "class
legislation" if it applies to potential parents
of socially inadequate offspring and goes
further to provide adequate means for
demonstrating such potential parenthood,
and further applies with equal force to all
of the generally recognized classes of so-
cially handicapped and unadapted. Such a
statute would be well within the police power
of the state, because the good, which it
would do the general welfare, would amply
justify the restriction of so-called "personal
rights,'' which restriction is, of course,
inherent in every statutory provision. There
must, however, always be a justifiable return
commensurate with the extent of the inva-
sion of personal rights. The eugenicist must
demonstrate to the legislatures and to the
courts that eugenical sterilization is a social
remedy well within such limitations.
In the "Journal of the American Institute
of Criminal Law and Criminology" the
matter of sterilization has received attention
from time to time:
1. 1911-1913, Vol. 3, p. 141.
A note signed A. M. reviews an article by
Dr. A. Good, a Swiss authority on steriliza-
tion,, who had a short time previously
written a paper for the Schweizerische Zeit-
schrift fiir Strafrecht, in which he urged the
adoption of the sterilization provision in the
Swiss criminal code. The note continues:
"The legally sanctioned domain of the physi-
cian is briefly discussed, including the sacri-
fice, of the foetus to save the life of the
mother, transfusions, transplantation, and
scientific experiinents. Sterilization (prefer-
ably by the application of the X-ray) is in
the interest of the social body and is de-
signed to make unnecessary more objec-
tionable measures of prevention of concep-
tion and artificial abortion. The definition
of legal justification of operations and medi-
cal duty should include the interest of the
commonwealth, as well as that of the indi-
vidual, wherever medical science recognizes
the indications as justified in principle. The
mediaeval church doctrine and popular
prejudice naturally demand some precaution
to prevent the animosity aroused by vaccina-
tion and prophylactic measures."
2. 1911-13, Vol. 2, p. 428.
A note signed F. G. reviews briefly a
pamphlet by Dr. Harry C. Sharp, formerly
a surgeon of the Indiana State Penitentiary,
who began performing vasectomy in that
institution in 1899, and had up to the time
of the publication of the pamphlet operated
upon 456 cases.
120
Analysis of the Sterilization Laws by Subject
3. 1911-1912, Vol. 3, p. 965.
Dr. Adolf Meyer reviews a paper, "Kas-
tration und Sterilisation von Geisteskranken
in der Schweiz Von Dr. Emil Oberholzer,
Juristisch-psychiatrische Grenzfragen. VIII.
Band, Heft 1-3, pp. 35^44." This paper
records the case histories of 19 persons who
were either castrated or sterilized, or for
whom these operations were seriously con-
sidered but not carried out after due con-
sideration by the medical authorities. After
reviewing these cases, Dr. Meyer says:
"Taking it all in all, the frankly recorded
material shows the conditions for steriliza-
tion, but also the fact that a great deal of
judgment is required which cannot easily be
formulated in the words of a statute. It is
of interest to note that among the parents
of these patients hardly one of them would
have offered sufficient provocation and
opportunities for legal sterilization before
the birth of these victims. We thus are not
yet dealing with a panacea, but the problem
deserves more extensive casuistic study,
rather than mere figures of the hundreds of
cases which have been operated on without
any account or further analysis of the
reasons and results.''
4. 1913-1913, Vol. 3, p. 3&9.
Here a letter by H. Havelock Ellis to the
Editor of the Lancet is quoted in full. In
this letter the writer considers the moral, the
-legal, and the eugenical aspects of steriliza-
tion.
5. 1913-1914, Vol. 4, p. 397.
A note signed R. H. G. quotes the recently
enacted sterilization law of Michigan.
6. 1913-1914, Vol. 4, pp. 336-358.
A protest against laws authorizing the
sterilization of criminals and imbeciles by
Charles A. Boston. This article reviews the
sterilization legislation up to date, and
opposes the principle on the following
grounds: "Before advocating such laws, I
would wish to be assured that the interests
of the community demand them; that the
assumed principle of heredity be true; that
the safeguards of liberty are not to be
thrown aside for a merely imaginary good;
that they be preserved as far as possible and
that crude legislation (and in my view it is
all crude) be avoided."
7. 1913-1914, Vol. 4, p. 420.
Arthur J. Todd of the University of Illi-
nois makes reference to six articles recently
published in German periodicals on the sub-
ject of sterilization. He writes:
"Sterilization of Criminals and Defectives.
— The question of 'sterilization' has passed
nearly through its academic stage. It is no
longer to be regarded merely as the aberra-
tion or idiosyncrasy of some 'crank' warden,
doctor or alienist. I was told last summer
by the conservative secretary of a Western
State Board of Charities that the only
trouble with sterilization is that it is not used
often enough! But when we begin to find
serious notice taken by European scientific
workers of American applications of sterili-
zation we may safely presume that the prin-
ciple has arrived! The German publication,
Juristisch-psychiatrische Grenzfragen (Vol.
Ill), last year contained two notable articles
on this subject. One from Dr. Hans W.
Maier, on the North American laws against
the inheritance of crime and insanity and
their application; the other from Dr. Emil
Oberholzer, on castration and sterilization
of the insane in Switzerland. Dr. Loffler,
editor of the dsterreichische Zeitschrift ftir
Strafrecht (Heft. 6, 1912), notes these articles
and gives a very fair resume of the problems
involved. Other recent treatments of the
sterilization question from different angles
are to be found in Archiv f. Kriminal-An-
thropologie, etc., XXXIX, 32; Zeitschrift f.
die gesamte Strafrechtswissenschaft, XVIII,
446; Monatschrift f. Kriminal Psycbologie
und Strafrechtsreform, V, 734-743. Dr.
Ernst Rosenfeld, in writing of his impres-
sions as a delegate to the last International
Prison Congress (Blatter f. Gefangniskunde,
45:286-9), concludes unfavorably on the
practice of sterilization at least as he saw it
in Indiana. Auf mich hat der Vorgang einen
abscheulichen Eindruck gemacht, he says.
But another distinguished foreign delegate,
Dr. Gennat, Director of Prisons at Ham-
burg, recently expressed himself as favoring
'emasculation,' at least of men convicted
of crimes against decency. We need not
multiply examples. Enough has been said
to warrant the criminologist or the lawyer
in treating the sterilization question seriously
in formulating his science or his project for
legal reform."
8. 1913-1914, Vol. 4, p. 733.
The full decision of the Supreme Court of
New Jersey on the sterilization law.
9. 1913-1914, Vol. 4, p. 747.
Dr. Henry B. Hemenway, of Evanston,
Illinois, presents a criticism of Mr. Boston's
paper above reported. He says: "Mr. Bos-
ton seems far from satisfactory from the
Anai^ysis of the Sterilization Laws by Subject
121
biological point of view. He evinces more
of the contentiousness of a barrister than
the critical analysis of a judicial mind. He
is perfectly justified in suggesting that the
sterilization laws have originated more
among sociologists and amateur reformers
than among scientific students of biology.
His reference to telegony is unfortunate
because it is one of the exploded theories
of unscientific breeders; and he seems to
have rather overworked his references to
'undesirable citizens.' "
10. 1913-1914, Vol. 4, p. 757.
A note signed R. H. G. refers to- the deci-
sion of the Supreme Court of New Jersey
in setting aside the sterilization law of that
state.
11. 1913-1914, Vol. 4, pp. 804-814.
"Sterilization Laws from a Legal Stand-
point," by Frank A. Penning. The author
is a member of the bar of the District of
Columbia. This paper reviews sterilization
legislation. The author says: "The social
and the medical view, closely allied as they
are, have been brought to the attention of
the public far more often than the legal
view. In the last analysis, however, it is
the view that the courts will take which must
influence and control the zeal of the social
worker, as well as the activity of the sur-
geon.'' After reviewing the recent medical
and psychopathic research he concludes:
"Out of all of this patient research, this life
work of men of marked attainments, we in-
dulge in the expectation that we will be able
to give treatment instead of punishment to
the criminal, and to the weak-minded and the
epileptic hold out that same ray of hope
which shines now for many who in years
bygone would have seen no light."
12. 1913-1914, Vol. 4, p. 934.
Dr. Bernard Glueck reviews "Sterilisation
und Kastration als Hilfsmittel im Kampfe
gegen das Verbrechen. Von Dr. Friedr.
Ludw. Gerngross. J. F. Lehmann's Verlag,
Munchen, 1913, pp. 39 M. 1.20." The re-
viewer finds that "The idea that society has
a right to, and should, protect itself against
its anti-social members, so warmly agitated
at the present time is by no means a new
one."
"Already in the ancient Greek and Roman
states there was a recognition of this prin-
ciple, but we of today shudder at the mere
mention of the methods used by the
ancients."
Dr. Glueck then refers to the discussion
of the legal phases of the problem which
the original paper presented, but it did not
lend itself to brief abstraction.
13. 1914-1915, Vol. 5, p. 5.
Arthur J. Todd, in a note entitled, "Steril-
ization and Criminal Heredity,'' approves of
recent criticisms of the sterilization laws and
says: "The critics of such legislation are
right in asserting that criminal inheritance
remains yet to be proved. They may be
wrong, however, in going on to conclude
that sterilization is a 'cruel and unusual pun-
ishment,' and of no practical utility." * * "
"And it is surely within the rights of the
state to prevent habitual criminals and. de-
fective delinquents from procreating children
at all, since they are manifestly unfit for
rearing them. It is not germs of criminality
we ought to fear, but lack of constructive
parental capacity. It would be well if future
discussions kept this aspect of the problem
clearly in view."
14. 1914-1915, Vol. 5, pp. 364-370.
"Marriage, Sterilization and Commitment
Laws Aimed at Decreasing Mental Defi-
ciency,'' by Jessie Spaulding Smith. The
writer, who is a teacher of special classes in
Oakland, California, recognizes the high
fecundity of many degenerate families, and
advocates asexualization as an aid to the
custodial care of feeble-minded persons in
controlling the general problem in hand.
She enumerates the existing sterilization
laws.
15. 1914-1915, Vol. 5, pp. 419-425.
This article gives in full the decision of
the District Court of the United States for
Southern Iowa (Eastern District), relating
to the sterilization law of Iowa.
16. 1914-1915, Vol. 5, pp. 514-539.
"Sterilization of Criminals" (Report of
Committee H. of the Institute, Joel D. Hun-
ter, Chairman).
17. 1916-1917, Vol. 7, pp. 373-378.
"Sterilization of Criminals" (report of
Comimittee F. of the Institute, Joel D. Hun-
ter, Chairman).
18. 1916-1917, Vol. 7, p. 591.
A letter to the Editor of the "Journal of
Criminal Law and Criminology," written by
W. F. Gray, in which the writer favors the
sterilization of certain classes. He believes
that the conditions are such "that something
should be done to check the rapid increase of
the insane, feeble-minded, and degenerate
persons." He has approved for the' State of
Illinois a proposed legislative act modeled
from the one which originally appeared in
Bulletin 10-b of the Eugenics Record Office.
122
'Analysis of thb Sterilization Laws by Subject
19. 1916-1917, Vol. 7, p. 611.
A draft of the proposed sterilization law
for Illinois above referred to.
SO. 1916-1917, Vol. 7, p. 753.
A letter to the Editor of the "Journal of
Criminal Law and Criminology-," written by
Dr. William S. Sadler of Chicago. The
writer favors sterilization as a eugenical
measure. After a general discussion he
reaches the topic of immigration, and says:
"Even our immigration laws are based on
finances and education, and not on blood
and taint.' We should keep out of this coun-
try all classes who are eugenically unsound
and let in the eugenically sound immigrant,
whether he can read or write or has a dollar.
We can teach him to read and make money
after he reaches our shores." Continuing to
the subject of feeble-mindedness. Dr. Sadler
says: "When it comes to sterilization, I am
interested in just one fundamental proposi-
tion, and that is feeble-mindedness with its
second cousins, epilepsy and insanity. I am
decidedly opposed to this agitation for the
sterilization of criminals, paupers, prostitutes
and inebriates. I believe that considerably
more than 75 per cent of public prostitutes
are feeble-minded. I believe that more than
half of our criminals are feeble-minded, sub-
normal or otherwise falling in the category
of moronism. I believe statistics bear out
the assertion that almost 90 per cent of our
paupers belong to this group. As to the per
cent of feeble-minded among confirmed
drunkards, I am not aware that we are in
possession of anything reliable in the way of
statistics."
21. 1917-1918, Vol. 8, page 449.
"Sterilization of Criminals" (Report of
Committee "F" of the Institute and a minor-
ity report, William A. White, Chairman).
The Survey (Nov. 24, 1917) commented
editorially on this report.
22. 1917-1918, Vol. 8, p. 126.
A draft of the proposed law for the sterili-
zation of criminals, feeble-minded, insane,
etc., in Pennsylvania.
Other Pertinent References.
1. From the "Proceedings of the Fourth
Annual Meeting of the American Institute
of Criminal Law and Criminology and of
the Wisconsin Branch," Milwaukee, Aug.
29-31, 1913, pp. 191-216. "Sterilization of
Criminals and Defectives," being the Report
of Branch Committee "D."
2. "Sterilization of Criminals" (report of
Committee "H" of the Institute, Joel D.
Hunter, Chairman, 1915). "The American
Bar Association Journal," Vol. 2, No. 1,
January, 1916, pp. 128-134.
3. "Hereditary Criminality," Judge War-
ren W. Foster, Pearson's Magazine, Novem-
ber, 1909. An article approving of the
policy of legalizing eugenical sterilization.
4. "Sterilization of the Unfit," New York
Law Journal, October 8, 1912 (Vol. XLVIII,
No. 7, p. 136). A commentary on the de-
cision of the Supreme Court of Washington
State V. Feilen, in which the court upheld
the constitutionality of the punitive steriliza-
tion statute.
The commentator says:
"It seems highly probable that under the
police power as now radically exercised by
legislatures with judicial sanction, statutes
of this general purpose will be held as pro-
tective expedients for society. And the de-
cision of the Supreme Court of Washington
is of wide significance because dealing
favorably with a constitutional question inci-
dental and tributary to the main one. Per-
sons guilty of rape and habitual criminals
if not insane or feeble-minded, must be dealt
with on the theory of punishment for crime.
By holding sterilization not to be an un-
constitutional punishment the Washington
court assures a wide scope to the statute for
social improvement of future generations.'
5. Harvard Law Review, Vol. XXVI, No
2, December, 1912, pp. 163-165.
"The ConstitutionaUty of the Compulsory
Asexualization of Criminals and Insane Per-
sons.— On the theory that modern scientific
investigation has demonstrated that idiocy,
insanity and criminality are hereditary,
several states have recently passed statutes
providing for the compulsory asexualization
of the inmates of insane asylums and state
prisons in cases where it seems advisable to
a board of medical examiners.i The applica-
tion of this provision to others besides
criminals and the manner and purpose of its
imposition makes it clear that it should not
be regarded as a punishment but as an exer-
cise of the police power. This power cer-
tainly enables the state to take some meas-
ures to protect itself against the birth of
undesirable citizens, since limitations on the
right to marry have been upheld on this
ground.a Furthermore, the fact that this
purpose is achieved by performing an oper-
ation is not a fatal objection, for it is clear
that a state can inflict physical injury on
individuals for the protection of society.
Anai,ysis op the Sterilization Laws by Subject
123
Compulsory vaccination laws, for instance,
have been upheld,3 and the operation of
vasectomy, at least, is hardly more serious
than vaccination.! If, therefore, there is a
probability that the persons to be operated
upon will produce insane or degenerate off-
spring, the statutes are constitutional. Since
the insanity of lunatics is generally in-
herited,5 the statutes, in so far as they apply
to lunatics, would thus seem to be valid.o
"With regard to criminals, however, the
statutes are less easy to sustain. The re-
searches of criminologists have" demon-
strated that a large number of criminals
have an inborn and hereditary tendency to
crime,! but such criminals probably form
only a minority of the inmates of penal insti-
tutions.8 Therefore mere conviction of crime
is insufficient to justify society in taking this
drastic means of protecting itself against the
criminal. Asexualization can only be justi-
fied in the case of born criminals.g and un-
fortunately in the present state of scientific
knowledge it seems impossible to distinguish
most born criminals from criminals by
acquired habit.io Therefore born criminals
who cannot be proved to be such must be
granted immunity. However, there are
probably some criminals whose degenerate
character can be ascertained, and if a statute
can be so drawn as to limit its operation to
such as these it should be constitutional.!!
"It is possible, however, for a legislature
to change the aspect of the constitutional
question by imposing sterilization as a pun-
ishment for crime.12 As such it is not un-
constitutional unlessia cruel and unusual. A
recent case holds that vasectomy is not a
cruel punishment for statutory rape.i4 State
V. Feilen, 126 Pac. 75 (Wash.). The scope
of the provision against cruel punishment
has never been clearly defined, but it cer-
tainly prohibits torture,!5 and, looked at apart
from its purpose, vasectomy is a mild form
of torture. The fact that there is a rational
purpose behind it makes it doubtful, how-
ever, if it can be said to shock public feel-
ing, which has sometimes been laid down as
the test of cruel punishment.M Yet, in the
case of those convicted of some of the crimes
included in the Washington statute, the act
authorized the asexualization of persons
agajnst whom society is not in need of this
protection.i7 As to them the punishment
seems cruel, and the statute which imposes
it unconstitutional. At all events, it is thor-
oughly objectionable, since it imposes as a
penalty for certain classes of crime a treat-
ment which is justified, if at all, only by the
physical nature of certain criminals."
1. Ind., Laws, 1907, c. 215; Conn., Pub.
Acts, 1909 c. 209; Cal., Stat, 1909 o. 720; la.,
Laws, 1911 0. 129.
2. Lonas v. State, 3 Heisk. (Tenn.) 287;
State v. Gibson, 36 Ind. 389; Gould v. Gould,
78 Conn, 242, 61 Atl. 604.
3. Morris v. Columbus, 102 Ga. 792, 30 S. B.
850; Jacobson v. Massachusetts, 197 U. S. 11.
25. Sup. Ct. 358.
4. See 27 Medico-Leg-al Journal, 134. Va-
sectomy is a comparatively simple and pain-
less operation consisting of the cutting into
and binding- up of a small portion of the vas
deferens. It effectively sterilizes the subject
but does not impair his health or take away
his sexual instincts.
5. See Lombroso, Crime: Its Causes and
Remedies, 168.
6. The right of the state to confine insane
persons in asylums is clearly established.
Dowdell, petitioner, 169 Mass. 387, 389, 47
N. E. 1033, 1034. This right has sometimes
been based on state's authority to care for the
helpless. See Dowdell, petitioner, snpra; Cha-
vannes v. Priestly, 80 la. 316, 320, 45 N. W.
766, 768. In some cases, however it is cer-
tainly based also on the state's right to pro-
tect society. See Shenango v. "Wayne, 34 Pa.
St. 184, 186; Keleher v. Putnam, 60 N. H. 30,
31. Preventing the procreation of lunatics is
merely another method of exercising this right
of social protection.
7. See Perri, Criminal Sociology, 28; Lom-
broso, Crime: Its Causes and Remedies, 151;
Dugdale, The Jukes.
8. Perri estimates that born and habitual
criminals together form about forty per cent
of the total. See Perri, Criminal Sociology, 18.
9. The only objection which can be made
to the legitimate children of habitual crimi-
nals is that they are likely to be reared in an
atmosphere of crime. This is merely an infer-
ence, and if it proves correct the state can
take them from the custody of their parents.
See Van Walters v. Board of Children's Guard-
ians, etc., 132 Ind. 567, 569, 32 N. E. 568, 569.
The legislature clearly has no power to enact
laws based on the principle that no one has a
right to have children unless he can bring
them up in an ideal environment.
10. See Saleilles, Individualization of Pun-
ishment, 129.
11. Inasmuch as it is very difficult to re-
strain the powers of the medical examiners
within proper limits, the attempt to pass this
sort of legislation at present seems inadvis-
able. The common provision that the opera-
tion may be performed whenever a majority of
the examiners "decide that procreation would
produce children with a tendency to disease"
would seem to give dangerously wide powers
to examiners who held extreme views as to
the hereditary nature of crime; and yet it is
hard to suggest a more satisfactory phrase-
ology.
12. Although the purpose of the statute
is not to avenge or prevent a particular crime,
but rather to reduce the number of criminals,
it would seem that since it provides for sterili-
zation as part of the sentence imposed upon
conviction of crime it must be regarded as
punishment. Cf. State v. Ray, 63 N. H. 406.
See People ex rel. Bradley v. Illinois State
Reformatory, 148 111. 413, 419, 36 N. B. 76, 78.
Contra, Prescott v. State, 19 Oh. St. 184.
13. The word "unusual" which is generally
linked with "cruel" is not in the "Washington
constitution. "Wash. Const., Art. 1, § 14. Its
omission is not important, since it is always
construed with cruel. Stortl v. Common-
wealth, 178 Mass. 549, 60 N. E. 210.
14. The precise crime of which the defend-
ant was convicted was "the carnal abuse of a
female person under the age of ten years."
"Wash., Rem. & Bal. Code, §§ 2287, 2436.
15. See "Wilkerson v. Utah, 99 U. S. 130, 136;
State v. "Williams, 77 M'o. 310, 312. Some
courts hold that a punishment may also be
cruel because excessive. State v. Driver, 78
N. C. 423; "Weems v. United States, 217 U. S.
124
Analysis of the Sterilization Laws by Subject
349, 30 Sup. Ct. 544. Contra, Aldrldge v. Com-
monwealth, 2 Va. Cas. 447. Since rape may be
punished by death, sterilization can hardly be
regarded as an excessive penalty. Bayna v.
State, 75 S. W. 26.
18. See Cooley, Constitution! Limitations,
473; State v. Becker, 3 S. D. 29, 41. Further-
more, the apparent theory of the statute that
the crime of which the defendant was con-
victed is strong evidence of his degenerate
character seems reasonable, although It has
been asserted that such crimes are mainly due
to the effect of civilization. See Lombroso,
Crime: Its Causes and Remedies, 256.
17. The act authorizes the sterilization of
habitual criminals. Wash., Rem. & Bal. Code,
§ 2287. Habitual criminals include those who
have been three times convicted of petit lar-
ceny. Wash. Rem. & Bal. Code, § 2286. Lar-
ceny is common among born criminals. See
Lombroso, Crime: Its Causes and Remedies,
154. Nevertheless, the <fact that a man has
been found guilty of three small thefts is
insuflScient evidence of his degeneracy. This
objection is hardly lessened by the fact that
the sterilization of such persons is discretion-
ary with the court, since this discretion may
be exercised arbitrarily.
' The matter of sterilization applicable to
the criminal classes is summed up from the
eugenical point of view as follows:
1. The criminalistic classes and inmates
of institutions for criminals should be sub-
ject to the eugenical sterilization statutes of
the states without favor or discrimination
upon exactly the same terms to which all
other inhabitants of the state are subjected,
namely, the proof by pedigree studies of the
potential parenthood of socially handicapped
or tmadapted offspring on the part of a given
individual.
2. No element or suggestion of punish-
ment should enter into a sterilization statute,
because eugenical sterilization has for its
sole purpose the improvement of racial
qualities.
3. If, however, a state desires to enact
a statute providing for the sexual steriliza-
tion of all criminals on a purely punitive
basis, it is legally essential that the order
for sterilization be made part and parcel of
the original sentence passed by the court.
If sterilization is ordered on all inmates of
certain institutions, which inmates have pre-
viously been sentenced for a given crime,
then such order, as in the Iowa case, will
doubtless be held to constitute a bill of
attainder. Moreover, this Iowa decision im-
plies that sterilization is a serious thing, re-
quiring in each case due process of law.
Finally, punitive sterilization is not in any
degree a simple therapeutic detail, such as
vaccination, which has been settled by the
courts of the country as being well within
the provisions of administrative and execu-
tive powers granted under legislative author-
ity, and not requiring court procedure in
each particular case. But it seems probable
that, in a majority of the states at least, a
purely or partly punitive statute authorizing
sexual sterilization would be held to consti-
tute cruel and unusual punishment, and there-
fore, would be held unconstitutional and of
no effect.
4. No appreciable mitigation of vicious
sex-tendencies results from sterilization,
except in the removal of the sex-gland
before puberty.
5. Criminologists generally have not con-
tended that sterilization is a reformatory
measure.
REFERENCES.
V. Na.cke, "Die Kastration bel gewissen Klas-
sen von Degenerirten als eln Wirksamer
Socialer Schutz," ATchlv. fflr Kriminaliui-
thropologle, Bd. Ill, 1899, p. 58; 10. "Kas-
tration in Gewissen Fallen von Geistes-
krankheit," PBychlatrlseli - XTenrologlacliA
WoclieiiBClirlft, 1905, No. 29.
Angelo Zuccarelli, "Assessualizzazione o ster-
ilizzazione del Degenerati," li'Aiuniuilo,
1898-99, No. 6; Id., "Sur la n^cesslte et sur
les Moyens d'empfecher la Reproduction des
Hommes les plus I>&e6n6T6a,'' XntematloBal
Congress Criminal Antbropology, Amster-
dam, 1901.
NS,cke, ICenrolo^scIieB Centralblatt, March 1,
1909. The original account of these opera-
tions is reproduced in the Psrehlatriscli-
ITenrologlscIie 'WoclienBClizUt, No. 2, 1909,
with an approving comment by the editor.
Dr. Bresler.
Flood, "Castration of Idiot Children," Ameri-
can Journal Fsyclioloery, Jan., 1899; also
Alienist and Henrolofist, Aug., 1909, p. 348.
Havelock Ellis, Sex in Relation to Society
(V61. VI of Studies in the Psychology of
Sex), pp. 614-615, Castration and Negative
Eugenics.
Millant, Castration Criminelle et Ifaniaque,
1902.
12. LEGAL LIABILITY OF EXECU-
TIVE AGENTS AND SURGEONS
IN EXECUTING THE SEVERAL
EUGENICAL STERILIZATION
LAWS.
The responsibility for eugenical steriliza-
tion, or sterilization for therapeutic mo-
tives must, of course, rest entirely with
the law. It would be not only unfair,
but also quite illogical to hold the
executive agents of the statute personally
or criminally liable for executing both the
letter and the spirit of the law in cases
which undoubtedly fall within the scope of
the statute itself. However, some of the
sterilization laws have deemed it fitting to
make special provisions in reference to the
immunity from criminal liability on the part
of the particular executive agents.
1. INDIANA. No reference.
3. WASHINGTON. First Law: No
reference.
Second Law: (Sec. 9.) "No surgeon per-
forming the operation provided for in the
Analysis of the Sterilization Laws by Subject
125
preceding section under the direction of the
superintendent, or other officer in charge of
• such institution, shall be held criminally
liable therefor or civilly liable for any loss
or damage on account thereof, except in case
of negligence in the performance of such
operation."
3. CALIFORNIA. First law. No
reference.
Second Law — Section 1. "* * * Asexua-
lization, whether with or without the con-
sent of the patient, shall be lawful and shall
not render said Commission, its members
or any person participating in the operation,
liable either civilly or criminally."
Sterilization Provision of law of Califor-
nia establishing Pacific Colony. This statute
follows the exact wording of the second
California statute, in reference to freedom
from civil or criminal liability.
i. CONNECTICUT. No reference.
5. NEVADA. No reference.
6. IOWA. First Law. No reference.
Second law — no reference.
Third law — no reference.
7. NEW JERSEY. Section 3. "* * * No
surgeon performing an operation under the
provisions of this law shall be held to ac-
count therefor, but the order of the Board
of Examiners shall be a full warrant and au-
thority therefor.''
8. NEW YORK. Section 352. "* * * No
surgeon performing the operation under the
provisions of this Act shall be held to ac-
count therefor."
9. NORTH DAKOTA. Section 9. "* * *
No surgeon who shall skillfully perform any
operation as authorized by this Act shall be
held accountable therefor, but the findings
and order of this said Board of Examiners
by the court, or the consent of such inmate
and parents or guardian shall be his full war-
rant and authority therefor."
10. MICHIGAN. No reference.
11. KANSAS. First Law. No reference.
Second Law — no reference.
12. WISCONSIN. No reference.
13. NEBRASKA. No reference.
14. OREGON. No reference.
15. SOUTH DAKOTA. No reference.
13. PUNISHMENT FOR DERELIC-
TION IN EXECUTING THE LAW.
Most of the sterilization statutes present
so many dangers in the mandatory chain
between the legislative enactment and the
actual sterilization of the particular subject
that the effect of such laws is to make them
an optional agency in the hands of their
executive agents. However, after certain
preliminary processes have, on the option of
their executive agents, been got through
with, one of the statutes makes mandatory,
under pain of fine or imprisonment, the fur-
ther execution of the law. An examinatioti
of the statutes reveals the following situation
in this regard:
KANSAS. First Sterilization Law, Chap-
ter 305, Laws of 1913, Section 3. "Any man-
aging officers herein charged with any duty
specified in section 1, who shall fail, neglect
or refuse for sixty days or more in the per-
formance thereof, shall be guilty of a mis-
demeanor and subject to a fine of not more
than one hundred dollars, or imprisonment
in the county jail for not more than thirty
days, or both such fine and imprisonment."
Doubtless the laws governing administra-
tive officers generally, in many other states,
would be applicable to officers who are dere-
lict in enforcing the sterilization statute. It
would seem that in a model sterilization stat-
ute little need would be found for this par-
ticular provision, but that great care should
be taken by legislative provision to insure
the appointment of competent and honest
men. The laws of the state covering
executive derelicts generally should be de-
pended upon to insure competent activity on
the part of a particular executive agent.
14. PUNISHMENT FOR THE ILLE-
GAL USE OF SEXUAL STERILI-
ZATION.
With the advent of eugenical sterilization
and the spread, among surgeons of prac-
tice and skill in sterilizing operations, and
further with the spread of the knowledge
that many physicians and surgeons possess
a relatively simple method of making indi-
viduals sexually sterile, there will doubtless
be an appeal to the medical and surgical
profession on the part of certain irresponsi-
ble and sexually indulgent individuals to be
made sexually sterile, in order that they may
ply their trade or indulge their sexual appe-
tites more freely and with less danger of
parenthood than is possible in the case of
persons who are sexually fertile. It is prob-
able that the hereditary moral qualities of
such persons would be found to be of such
low value to the state that the perpetuation
126
Analysis of the Sterilization Laws by Subject
of their kind would be of little value. Still
there is the moral and hygienic aspect of un-
bridled license, and the matter of tampering
illegally with a function, so vital to the in-
terests of the state as the reproductive pow-
er, is of such moment that several of the
sterilization statutes have sought to control
the illegal use of surgical sexual steriliza-
tion by devoting a section of the statute to
defining what constitutes the illegal use of
sexual sterilization and prescribing punish-
ments for breach of the law.
In reviewing these statutes we find the
following provisions :
1. CONNECTICUT. Sterilization Stat-
ute, Chapter 209, Public Acts 1909, Section 2:
"Except as authorized by this act, every per-
son who shall perform, encourage, assist in,
or otherwise promote the performance of
either of the operations described in section
one, of this act, for the purpose of destroying
the power to procreate the humane species,
or any person who shall knowingly permit
either of such operations to be performed
upon such person, unless the same shall be
a medical necessity, shall be fined not more
than one thousand dollars, or imprisoned in
the state prison not more than five years, or
both."
2. IOWA. First Sterilization Law, Chap-
ter 129, Acts of 34th General Assembly, Sec-
tion 2: "Except as authorized in this act,
every person who shall perform, encourage,
assist in or otherwise promote the perform-
ance of either of the operations described in
Sec. 1 of this act, for the purpose of destroy-
ing the power to procreate the human species,
or any person who shall knowingly permit
either of such operations to be performed
upon such persons, unless the same shall be
a medical necessity, shall be fined not more
than one thousand ($1,000.00) dollars, or im-
prisoned in the county jail not to exceed
one year, or both."
Second Sterilization Law, Chapter 187,
Acts of 35th General Assembly, Section 4 :
"Except as authorized in this act, every
person who shall perform, encourage, assist
in or otherwise promote the performance
of either of the operations described in sec-
tion one of this act, for the purpose of de-
stroying the power to procreate the human
species, or any person who shall knowingly
permit either of such operations to be per-
formed upon such persons, unless the same
shall be a medical necessity, shall be fined
not more than one thousand dollars, or im-
prisoned in the penitentiary not to exceed
one year, or both."
Third Sterilization Law, Chapter 202, Acts*
of 36th General Assembly, Section 4: "Ex-
cept as authorized in this act, every person
who shall perform, encourage, assist in, or
otherwise promote the performance oi the
operations described in section two of this
act for the purpose of destroying the pow-
er to procreate the human species, or any
person who shall knowingly permit either
of such operations to be performed upon
such person, unless the same shall be a medi-
cal necessity, shall be fined not more than
one thousand dollars, or imprisoned in the
penitentiary not to exceed one year, or
both."
3. NEW YORK. Public Health Law,
1912, Article 19, Sec. 353: "Except as author-
ized by this act, every person who shall per-
form, encourage, assist in, or otherwise per-
mit the performance of the operation for
the purpose of destroying the power to pro-
create the human species, or any such person
who shall knowingly permit such operation
to be performed upon such person, unless
same shall be a medical necessity, shall be
guilty of a misdemeanor."
4. MICHIGAN. Public Acts 1913, Act
No. 34, Section 5: "Except as authorized by
this act, every person who shall perform, en-
courage, assist in, or otherwise promote
the performance of either of the operations
described in section one of this act, for the
purpose of destroying the power to procre-
ate the human species, or any person who
shall knowingly permit either of such op-
erations to be performed upon such person,
unless the same shall be a medical necessity,
shall be guilty of a felony, and upon con-
viction thereof shall be fined not more than
one thousand dollars, or imprisoned in the
state prison not more than five years or
both, at the discretion of the court before
whom the said person or persons were so
convicted."
5. KANSAS. First Law, Chapter 305,
Session Laws of 1913, Section 2: "Except as
authorized by this act, every person who
shall perform, encourage, assist in, or oth-
erwise promote the performance of either
of the operations, described in section 1 of
this act, for the purpose of destroying the
power to procreate the human species, or
any person who shall knowingly permit
either of such operations to be performed
upon such a person, unless the same shall
Analysis of the Sterilization Laws by Subject
127
be a medical necessity, shall be fined not
more than one thousand dollars, or impris-
oned in the county jail not exceeding one
year, or both.''
Second Law, Chapter 299, Session Laws
of 1917, Section 7: "Except as authorized
by this act, every person who shall perform,
encourage, assist in or otherwise promote
the performance of either of the operations
described in this act, for the purpose of
destroying the power to procreate the human
species, unless same shall be a medical
necessity, shall be fined not less than $100.00
nor more than $500.00, and imprisoned in
the county jail not less than six months nor
exceeding one year.''
6. WISCONSIN. Chapter 693, Laws of
1913. Section 3. "* * * provided, however,
that the operation shall not be performed
except in such cases as authorized by the
said board of control."
Because of the liabilities of abuse of sur-
gical sexual sterilization if the practice be-
comes widespread for eugenic^l purposes,
it would appear wise to include in future
statutes provisions against the illegal use
of this method of preventing human repro-
duction.
15. THE LEGAL ASPECT OF SEXUAL
STERILIZATION FOR THERA-
PEUTIC PURPOSES.'
To each of the 124 state institutions for
the various types of the socially inadequate
classes which are or have been subject to
the several sterilization laws, the following
questions were put:
1. Can you, in ordinary course of your
professional practice, perform any operation
under this law that would be forbidden or
illegal without it?
Answers :
Institution not under the law: 16
No: 25
Yes: 15
Must have consent of patient,
or State Board of Health, etc.... 7
•Law declared unconstitutional. ..... 8
No cases : 20
Law specifies classes 2
Applicable only to parole cases.... 1
Don't know 8
No such law 4
No answer : 18
Total 124
3. What in your opinion is the medical
value of the statute?
Answers :
Decided value : 21
Slight value 8
No opinion to offer : 20
No value 8
No answer : 67
Total 124
3. What is the eugenical value of the
law?
Answers :
Decided value: 50
Doubtful 5
No opinion 6
No value 2
No answer : 61
' See also page 100.
Total 134
For therapeutic purposes it would appear
that the existing la>vs may be regarded as
superfluousy because they grant no new
authority and impose no additional respon-
sibility. It is true that many of the sterili-
zation statutes permitted; the sterilization
of certain inmates on the grounds that such
operation might benefit the physical and
mental condition of the particular inmate.
It seems probable, however, that the laws
controlling the medical and surgical treat-
ment of inmates of institutions generally
cover surgical operations which were based
upon sound medical reasons, and which op-
erations incidentally involve the destruction
of the reproductive functions of the indi-
vidual. Just as the attempt to make sexual
sterilization a punishment for crime has
proven to be entirely repugnant to our in-
stitutions, and of little eugenical value, the
authority granted to use sterilizing opera-
tions for therapeutic purposes is entirely
superfluous and of no eugenical value. Eu-
genical sterilization has but one purpose,
the cutting off of the descent lines of indi-
viduals with defective and degenerate heredi-
tary traits. Punishment for crime, and rem-
edies for physical ailments of the particular
individual, are problems not for eugenics,
but respectively for criminology and for
medicine.
Many cases are reported in different states
in which surgeons, without regard to stat-
utes in reference to eugenical sterilization,
but apparently entirely safe-guarded by oth-
er laws controlling surgical practice, have
by surgical means sexually sterilized their
128
Analysis of the Sterilization Laws by Subject
patients. In these cases several motives
have been reported: first, to forestall pos-
sible future pregnancies which would be
apt to be obstetrically difficult; second, oth.
er cases which would be especially burden-
some economically or socially; and third, on
account of eugenical desirability. It is here
pertinent to call attention to the fact (p. 86,
Chapter IV) that the Buffalo State Hos-
pital practices eugenical sterilization on its
own responsibility.
But in even more cases sexual sterilization
has been performed as an accompaniment,
surgically unnecessary but desirable for one
or more of the above stated reasons, of gyne-
cological operations. In such cases it ap-
pears that sexual sterilization was not justi-
fied on its own account, but was made a
by-product of operations having other pri-
mary purposes.
16. THE SEXUAL STERILIZATION
OF INMATES OF CUSTODIAL
INSTITUTIONS, PRIOR TO
THEIR RELEASE.
No eugenical purpose would be served
by the sexual sterilization of inmates of our
larger custodial institutions unless such in-
mates are to be released into the population
at large while still in the reproductive per-
iod. It is true that in some of the smaller
alms-houses and ill-managed custodial in-
stitutions, female inmates are known to give
birth to children who were conceived while
the particular inmate was still in the insti-
tution, or while away on short parole, or at
intervals between the commitment periods.
But such occurrences are becoming rarer. If
segregation in modern custodial institutions
were general in the case of potential
parents of degenerates, and such custodial
care in all cases continued until the end of
reproductive period of the particular in-
mates, there would be no object in eugeni-
cal sterilization. But the inmates of the
custodial institutions and the potential par-
ents of socially inadequate offspring are not
in any state to any great degree one and the
same class. Inmates of institutions are of
two classes — potential parents of degener-
ate offspring, and persons who are not such.
Similarly the same two classes exist in the
population at large. This is the reason why
eugenical sterilization laws which apply only
to the inmates of institutions constitute
"class legislation" in that such statutes
create an unnatural and arbitrary sub-class
within a larger natural class, some of which
• natural class are in institutions and some
of whom are in the population at large.
But to this entire general natural class, not
to its arbitrary sub-class, the law, in order
to be constitutional on the grounds of "equal
protection of the laws'' must apply.
The superintendents of some of the larger
custodial institutions oppose sterilization be-
cause they feel that sterilization if extensive-
ly used would cause society to diminish its
support of extensive segregation of inade-
quates. They fear that it is proposed to
apply sterilization to socially incapable and
degenerate individuals, then turn such per-
sons on their own resources and on charity
in the population at large. They point out
that if individuals of low natural inhibitory
powers are sexually sterile, the knowledge
of such sterility will break down the last
modicum of self-restraint which these un-
fortunates possess in reference to sexual
matters; that as a result sexual license, ac-
companied by moral deterioration and in the
spread of ■Venereal disease, would be greatly
increased.
But here there is a confusion of the func-
tions of a custodial institution and eugeni-
cal sterilization. Custodial segregation, if
continued long enough in a modern in-
stitution, will safely take the place of sex-
ual sterilization. But sexual sterilization
cannot take the place of custodial care of
a degenerate or defective individual. It would
appear then that the statute should apply to
the potential parents of defectives who are
in institutions, but that the actual perform-
ance of the sterilizing operation or treat-
ment may, in the case of the inmates of the
institutions, be well suspended until the par-
ticular inmate is about to be released into
the population at large. And if in the mean-
time the particular inmate has, due to dis-
ease or medical treatment or old age, lost
the reproductive function, then of course
there would be no eugenical object, even up-
on release of such an inmate, in executing
the legal order for destroying the reproduc-
tive functions.
With those laws which permit sexual ster-
ilization for punitive or therapeutic, rather
than for eugenical purposes, the application
of the operation to inmates of institutions,
regardless of their prospect of release or
parole while still potential parents, is quite
logical; but with the passing of punitive ster-
ilization, and the superfluous nature of spe-
cial legislation permitting sterilization for
Analysis of the Sterilization Laws by Subject
129
therapeutic purposes, the eugenical motive
alone remains. This logically calls for sexual
sterilization of potential parents of degen-
erates, who are inmates of custodial institu-
tions, only in case such inmates are to be
released or discharged while still capable of
procreation.
The laws in reference to the relation be-
tween the termination of custodial care and
the time set for sterilizing the particular
inmate are summarized as follows:
1. INDIANA. The law applies only to
the inmates of certain institutions. There is
no provision for suspending the order for
execution in the case of life prisoners, nor is
there any authorization for sterilizing poten-
tial parents of defectives in the population
at large.
2. WASHINGTON. In Washington the
first law is punitive and applies equally at
the discretion of the judge in case of convic-
tion for rape to a person committed for life
and one committed for the minimum period.
The second law applies generally to de-
fective and criminal individuals in institu-
tions. Its intent is absolutely eugenical and
therapeutic.
3. CALIFORNIA. The first statute ap-
plies generally to inmates of non-punitive
institutions, but in the case of convicts sen-
tenced to a state prison for life, and who
exhibit continued evidence of moral and
sexual depravity, the right to asexualize them
shall apply. This last provision must be
purely therapeutic in its intent; certainly it
has no eugenical bearing.
Second California statute applies only to
inmates of institutions, with the same pro-
vision as the first statute for application to
life prisoners. This statute, however, im-
plies a more logically eugenical meaning
by authorizing the state commission in lun-
acy, after consideration, to cause inmates
of institutions to be asexualized before the
release or discharge of such persons from
institutional custody.
The third and fourth statutes modify in no
manner the provisions of the second in
reference to the time of application of au-
thorized sterilization.
4. CONNECTICUT. The law applies
only to inmates of institutions, with no pro-
vision for excepting individuals who are com-
mitted for life, or who are not potential
parents.
5. IOWA. The first law applies only to
inmates of institutions, with no provision in
reference to the probable length of period
of commitment or potential parenthood.
The second statute applies to the inmates
of institutions, and also permits the board
of parole or a district court to authorize the
sterilization of persons at large who are
afilicted with syphilis or epilepsy.
The third sterilization law of Iowa applies
only to inmates of institutions, with no pro-
vision for excepting the inmates apparently
to be confined for life, and who are not po-
tential parents.
6. NEW JERSEY. The law applies only
to the inmates of the institutions, with no
provision for excepting individuals appar-
ently to be confined for life, or who are not
potential parents.
7. NEW YORK. The law applies only
to the inmates of institutions, with no provi-
sion for excepting individuals apparently to
be confined for life, or who are not poten-
tial parents.
8. NORTH DAKOTA. This law applies
only to the inmates of institutions, with no
provision for excepting individuals appar-
ently to be confined for life, or who are
not potential parents.
9. MICHIGAN. The law applies only to
the inmates of institutions, with no provision
for excepting inmates apparently to be con-
fined for life, or who are not potential par-
ents.
10. KANSAS. The first and second stat-
utes of Kansas apply to the inmates of in-
stitutions, with no provision for excepting
inmates, apparently to be confined for life,
or who are not potential parents.
11. WISCONSIN. The law applies only
to the inmates of institutions, with no provi-
sion for excepting inmates apparently to be
confined for life, or who are not potential
parents.
13. NEBRASKA. The sterilization statute
of Nebraska was the first in letter and
spirit to recognize the eugenical purpose of
the Act by modifying its application of ster-
ilization to the inmates of institutions. It
applies only to such inmates as are "physi-
cally capable of bearing or begetting off-
spring," and provides further that if after
the investigation of the "farnily traits and
history of all inmates who may be subject
to parole or discharge from the institution,"
it is found "that such inmate is capable of
bearing or begetting oflFspring," "* * * that
such children would probably become a so-
130
Analysis of the Sterilization I^aws by Subject
cial menace, and that the procreation by such
inmate would be harmful to society, and
that such inmate should not be paroled or
discharged, as the case may be, unless ster-
ilized, then in every such case it shall be a
condition prerequisite to the parole or dis-
charge of such inmate, that said inmate be
made sterile."
13. OREOON. The law applies only to
the inmates of institutions, with no provision
for excepting individuals apparently to be
confined for life, or who are not potential
parents.
14. SOUTH DAKOTA. The law applies
only to the inmates of institutions, with no
provision for excepting individuals appar-
ently to be confined for life, or who are not
potential parents.
Twenty-two laws in reference to sterili-
zation have been written on the statute books
of American states. In only one instance
was the law made applicable to persons in
the population at large. This exception is
to a very limited class authorized to be eu-
genically sterilized by the second steriliza-
tion law of Iowa (1913, Chap. 187, Acts of
the 35th General Assembly, Sec. 3) "Those
afflicted with syphilis or epilepsy may apply
to the board of parole, or any judge of the
district court, and upon order of such board
or judge, the operation of vasectomy or liga-
tion of the Fallopian tubes may be per-
formed upon such person, and any law
restricting marriage of such person shall
be void and of none effect, in case one of
the contracting parties has submitted to
such operation and the same was known to
both parties before their marriage."
The student of eugenics, in making this
particular analysis of the laws with reference
to their attitude toward applying eugeni-
cal sterilization only to those potential par-
ents of defective offspring who are inmates
of institutions and who are to be discharged
into the population at large while still physi-
cally able to bear or to procreate young,
finds that the Nebraska statute stands out
as the only law which has at all grasped
the eugenical purpose of applying a sterili-
zation statute to the inmates of custodial
institutions for the several types of socially
unadapted.
17. CLASS LEGISLATION
Section 1 of the XlVth Amendment to
the Constitution of the United States provides
that "no State shall make or enforce any
law which shall abridge the privileges or
immunities of citizens of the United States;
nor shall any State deprive any person of
life, liberty, or property without due pro-
cess of law, nor deny to any person with-
in its jurisdiction the equal protection of the
laws." The violation of the latter provis-
ion of this section, the denial of equal
protection of the laws, constitutes what is
called "class legislation." The law must, of
course, establish certain standards and speci-
fications for the application of the law. In
so doing it creates legal classes, but these
classes must, under this provision, be natur-
al classes. They must not be too much sub-
divided or too artificial or arbitrary in their
inclusions and limitations. In other words,
the law, in depriving individuals of life, lib-
erty, or property, must apply with equal
force and without favor or hindrance to all
persons within the state who conform to
the general specifications set by the statute.
Five of the eugenical sterilization statutes,
Indiana (Chapter 215, Laws of 1907), New
Jersey, (Chapter 190, Session Laws of 1911),
Iowa, (Chapter 187 Session Laws of 1913),
New York (Chapter 445, Session Laws of
1912) and Michigan, (Act No. 34 Sessions
Laws of 1913) — have been declared un-
constitutional, among other objections, in
four cases on the ground that the statute, as
drawn, constituted "class legislation." The
judges in rendering their opinions in some
cases criticised the expediency of the law
and the effectiveness of its administration,
matters which, of course, should be attended
to by the legislative and executive depart-
ments, respectively. But in each case, fin-
ally, the court exercised its undoubted ju-
dicial prerogative in passing upon the con-
stitutionality of the act
There is another specification which cus-
tom demands of our American state legisla-
tion, and that is that there be a reasonable
adaption of the means which the statute
provides for effecting the desired end. There
must be a compensation in benefit to the
general welfare for the intrusion upon what
. might be called personal or natural rights
of the citizen. Thus, if vaccination had been
proven to be of no avail, doubtless the courts
would have refused to uphold the constitu-
tionality of a statute which so invaded the
rights of the citizen to a great extent and
still offered no return to the general wel-
fare. But vaccination having proved its
medical worth, the courts quite generally
have sustained the most radical provisions
for compulsory vaccination.
Analysis of the Sterilization Laws by Subject
131
In relation to eugenical sterilization, what
is the natural class to which the remedy-
must be applieJ, without constituting "class
legislation" or denying the equal protection
of the laws to all residents within the juris-
diction of a given state? The New Jersey
court held that to apply sterilization to ep-
ileptic, inmates of an institution and not to
the epileptics of the same degree of degen-
eracy in the population at large constituted
■'class legislation." The court in this case
moreover suggested that the limits of unde-
sirable parenthood would be difficult to es-
tablish, that if the principle of sterilization
of degenerates were upheld, there would be
no logical termination for its application.
This latter opinion was of course not that
of students of the socially indequate classes
who had canvassed the whole field of so-
cially handicapped and had learned that the
classification of social inadequates and defi-
nitions which set them off quite sharply
from the normal population are generally
agreed upon by sociologists and eugenicists.
If a particular state seeks to limit its steri-
lization laws to natural classes of degener-
ates, may it not contend that its segrega-
tion and commitment laws are so thorough
that only in institu;tions are persons of
degenerate stock who logically fall within the
eugenical ban to be found? Could it not
also contend that the sterilization of all
feeble-minded persons of a certain degree
of mental defect constitute a natural class
to whom eugenical sterilization could be
logically applied without any possibility of
denying equal protection of the laws to all
citizens of the state. It might even be ar-
gued that there is so much hereditary sal-
vage in the insane classes, and so many
types of the insane — indeed modern institu-
tions often show thirty classes in their diag-
nosis reports — that the inclusion of the in-
sane in the same category with the feeble-
minded would be illogical and would work
eugenical harm in many cases. If in future
cases the courts uphold the narrower view
of "class legislation" which has been upheld
by the four cases above mentioned, then
doubtless the states will be found bereft of
a power for race betterment which they may
in the future care to exercise.
The model sterilization statute, however,
has no quarrel with "class legislation" be-
cause it applies to all individuals in the state,
whether in institutions or in the population
at large, who conform to a certain stand-
ard stated in the statute of degenerate
parenthood, regardless also of the particular
type of defectiveness, whether feeble-minded,
insane, criminalistic, or with gross physical
defects. The law must thus, in order to be
logical, not subject persons who are indi-
vidually handicapped mentally or physically
to sexual sterilization if their individual han-
dicap is the result of accident or environment
circumstances, and is not based upon heredi-
tary qualities. This distinction is certainly
sound biologically, and its application
helps to define more sharply the natural
classes which the law holds should be made
the basis for legislation. A court, in seeking
to avoid discrimination by including all the
insane persons within the scope of a sterili-
zation law, would defeat its own purpose by
not making the exceptions above described.
A canvass of the statutes finds the follow-
ing limitations of the application of eugeni-
cal sterilization, that is, individuals are se-
lected for sterilization within these classes.
1. INDIANA. Inmates of institutions en-
trusted with the care of confirmed criminals,
idiots, rapists and imbeciles.
2. WASHINGTON. First Law. Those
adjudged guilty of carnal abuse of a female
person under ten years of age, or rape.
Second Law. Inmates of State custodial
institutions who are feeble-minded, insane,
epileptic, habitual criminals, itioral degen-
erates and sexual perverts.
3. CALIFORNIA. First Law. Inmates
of the state hospitals and the California
Home for the Care and Training of Feeble-
Minded Children, and convicts in the state
prisons.
Second Law. Inmates of state hospitals
for the insane, the Sonoma State Home,
convicts in state prisons, and idiots.
Amendment to the Second Law. No ex-
tension of classes.
Law establishing the Pacific Colony. Ap-
plication of sterilization statutes to inmates
of the Pacific Colony.
4. CONNECTICUT. Inmates of the
state prison and the state hospitals for the
insane at Middletown and Norwich.
5. NEVADA. Those adjudged guilty of
carnal abuse of a female person under ten
years of age, or of rape.
6. IOWA. First Statute. Inmates of
each public institution in the state entrusted
with the care of criminals, idiots, feeble-
minded, imbeciles, drunkards, drug-fiends,
epileptics and syphilitics.
Second Law: All public institutions in
the state entrusted with the care of crimi-
132
Analysis of the Sterilization Laws by Subject
nals, rapists, idiots, feeble-minded, imbe-
ciles, lunatics, drunkards, drug-fiends, epi-
leptics, syphilitics, moral and sexual per-
verts, and diseased and degenerate persons;
also persons in the population at large who
are afflicted with syphilis or epilepsy and
who may voluntarily apply to a district
court.
Third Law. Inmates of the state hos-
pitals for the insane.
7. NEW JERSEY. Feeble-minded, epilep-
tic, and other defective inmates confined
in the several reformatories, charitable and
penal institutions in the counties and state,
criminals who have been convicted of the
crime of rape or of such succession of of-
fenses against the criminal law as in the
opinion of the board of examiners shall be
deemed to be sufficient evidence of con-
firmed criminal tendencies.
8. NEW YORK. Feeble-minded, epileptic,
criminal and other defective inmates con-
fined in the several state hospitals for the
insane, state prisons, ' reformatories and
charitable and penal institutions in the state,
including criminals who have been convicted
of the crime of rape, or of such succession
of offenses against the criminal law as in
the opinion of the board shall be deemed
sufficient evidence of confirmed criminal
tendencies.
9. NORTH DAKOTA. Inmates of the
state prison, reform school, state school for
feeble-minded, and the state hospitals and
asylums for the insane.
10. MICHIGAN. Inmates of all institu-
tions maintained wholly or in part by public
expense, who have been adjudged by a court
of competent jurisdiction to be mentally
defective or insane.
11. KANSAS. First Law. Inmates of all
state institutions entrusted with the care and
custody of habitual criminals, idiots, epilep-
tics, imbeciles, and insane.
Second Law; Inmates of the state peni-
tentiary, the Hutchinson Reformatory, the
state hospitals for the insane, the state hos-
pitals for epileptics, the state Home for
Feeblc-Minded, and the state Industrial
School for Girls.
13. WISCONSIN. Inmates of state and
county institutions for the criminal, insane,
feeble-minded and epileptic classes.
13. NEBRASKA. Inmates of institutions
for the feeble-minded and insane, the peni-
tentiary, reformatory, industrial home and
industrial schools.
14. OREGON. Inmates of the Oregon
state hospitals and the Oregon penitentiary,
who are feeble-minded, Ihsane, epileptic,
habitual criminals, moral degenerates and
sexual perverts.
15. SOUTH DAKOTA. Inmates of the
state home for feeble-minded persons.
This canvass shows a rather limited appli-
cation of the principle of eugenical steriliza-
tion, but as the principles which govern the
determination of degenerate parenthood and
practical methods of gathering pedigree evi-
dence are still not widely diffused among
the social and eugenical workers of the
country, these laws may be considered safe
and sound in that they apply to such indi-
viduals who by due process of law have been
declared to be socially unadapted to a degree
which constitutes them a social menace.
The decisions of the court in reference to
their limited application, together with
wider spread of the knowledge of human
pedigree studies, will justify the correction
of this objection of so limited an applica-
tion that the statutes are apt to be held to
constitute "class legislation."
18. WHAT CONSTITUTES DUE PRO-
CESS OF LAW IN EUGENICAL
STERILIZATION?
Whenever a law commands that some-
thing be done in reference to individuals of
a certain class, the members of which present
a given legally defined condition, and the
execution of the thing ordered is, or may
be, distasteful or objectionable to the par-
ticular individuals afifected, such a law is
always considered an infringement of the
personal liberty of the individuals affected
by it. But this is the nature of all law — to
command what shall be done and what shall
not be done. A democracy permits such
infringement of personal rights only in case
the law applies without favor or discrimina-
tion to all members of the natural class pre-
senting the legally defined conditions.
In applying such a statute in America
there must always be due process of law.
This may be effected by requiring court pro-
cedure in cases involving a relatively great
infringement on personal liberty, or by
entrusting the application of the law to
executive agents who in their discretion may
decide summarily that the law applies or
does not apply in a particular case. Obvi-
ously enough, this latter type of summary
administration is applicable only to the less
serious infringements on personal liberty,
Analysis of thu Sterilization Laws by Subject
133
and the rights of persons affected by the
laws are further safe-guarded by providing
for appeals to the courts in case of apparent
or supposed abuse of power.
In reference to eugenical sterilization, the
following questions arise: Is sterilization a
surgical operation, and in compulsory cases
an infringement on personal liberty to such
an extent that it should be ordered only as a
result of court procedure in which the indi-
vidual propositus has a right to be heard,
or may it be classed with those lesser in-
fringements or intrusions on personal liberty
which are entrusted in their execution to the
arbitrary discretion of executive agents?
Does the fact that sterilization results in the
inability of the individual operated upon to
produce young have any bearing on the
matter, or will the law take into consider-
ation only the danger to life of the surgical
operation itself, and in the case of young
persons the physiological consequences in
development? Will all sterilizing operations
come under the same class as to requiring
due process of law — that is, will vasectomy,
or even castration, in the male, and sterili-
zation by scarifying and X-rays in the fe-
male, be classed as not endangering life, and
therefore be ordered by an executive agent,
whereas those operations upon the female
which involve the opening of the abdominal
cavity be classed with those dangerous to
life, and therefore be ordered only with the
consent of the patient, or by court order,
after hearing and trial?
The arguments for requiring court pro-
cedure in each case may be summed up as
follows :
(a) The destruction of the reproductive
powers will effect directly the character of
the next generation, and consequently is a
matter of great social importance.
(b) So far as the individual and the
family are concerned, sterilization cuts most
deeply into the most fundamental of all
natural functions.
(c) There is no necessity for haste in
eugenical sterilization, as in the case of vac-
cination for an impending epidemic of small-
pox, or the commitment of the insane who
are momentarily in danger of committing
serious anti-social acts.
(d) The determination of defective par-
enthood is a matter which requires careful,
extensive and technical study, and cannot be
effected summarily and without due investi-
gation.
Eugenical sterilization lays a safe and sane
democratic foundation for laws which will
in the future govern not only the interests
of race betterment, but be used to limit the
human race, due to the prospect of over-
population. If summarily applied, such
limitation would be fraught with the greatest
possibility for wrong to the individual and
the race. The necessity, while population is
still relatively sparse, for developing an
effective and just court procedure for the
determination of defective parenthood is
very great. _
The arguments for entrusting eugenical
administration to executive or administrative
discretion are:
(a) Potential parenthood of defectives is
defined by legislative authority, and its exe-
cution should be entrusted to scientific and
^honest agents who will, as in the case of
vaccination, determine the necessity for the
application to individual cases.
(b) An honest executive agent is much
more, apt to make a thorough and expeditious
examination than is a court, which often
permits cases to drag on for years; mean-
while the potential parent of defectives would
be reproducing his or her defective stock.
(c) Quarantine rests on individual execu-
tive discretion under a general statute, and
not on court procedure in each case.
(d) The commitment of insane to insti-
tutions, which involves as great an invasion
of liberty as can be imagined, is entrusted
to executive agents who are not required to
conduct court procedure in order to make
commitment legal.
(e) In institutional cases, vaccination,
dental work, operations for rupture, and
many other surgical and medical treatments
are permitted on the discretion of the super-
intendent, regardless of the consent of the
individual, and certainly without court order.
Even in punitive cases wardens and prin-
cipals of prisons and reform schools are per-
mitted considerable latitude in administering
disciplinary punishment. If sterilization is
for the benefit of the individual, should it not
fall within this same category of remedial
agencies placed at the disposal of superin-
tendents of institutions?
There are two groups of statutes in refer-
ence to their attitude toward the seriousness
of eugenical sterilization as an invasion of
personal freedom. The first group consists
of those laws in which due process of law
is achieved by making eugenical sterilization
134
Analysis of the; Stbriwzation Laws by Subject
the subject of ministerial discretion, and not
requiring court procedure in each case. In
the second group are those statutes which
evidently hold that eugenical sterilization is
so fraught with possibilities for wrong to
the individual in depriving him of life or
liberty or of natural functions that if due
process of law be effected, it is necessary
in each case to provide court procedure, with
the right to be heard, and the application of
the order for sterilization as a result of the
law and the evidence. It may even be held
that the facts of the case jjiay be determined
legally by jury.
All of this does not, of .course, imply that
the state has not the right to impose eugen-
ical sterilization upon defective families, but
that in the orders for particular cases there
is a difference of opinion in this early period
of sterilization legislation concerning what
constitutes due process of law.
Under the term executive discretion are
included all of those means of determination
other than court procedure. Many states
have sought to insure justice and effitiency
by setting up a sort of semi-judicial commis-
sion, or entrusting the final determination to
a board of directors. The essential feature
of proceedings under such boards is, how-
ever, non-judicial in that the right of the
person nominated for sterilization to be
heard directly or by a mixed friend and
attorney, and the application of the law
solely upon the facts and the evidence, is
lacking.
It is clear that a state may effect legal
eugenical sterilization, so far as satisfying
due process of law, either through (a) the
summary discretion of an administrative
officer, or (b) a semi-judicial board of ex-
aminers or commission, or (c) court pro-
cedure based on law and evidence. In the
model law which accompanies this study,
procedure is provided as follows:
A trained eugenicist acts in the executive
capacity by securing evidence relative to
socially inadequate parenthood, then brings
the evidence before courts of competent
jurisdiction who determine upon sterilization
in accordance with the law and the evidence.
If the law is properly drawn, court pro-
cedure may after the first few cases be
expedited almost as promptly as under
purely executive procedure. Thus in every
case the people of the state will be assured
that the most punctilious regard has been
had for the rights of the particular indi-
vidual nominated for sterilization, and the
opportunity for abuse of authority in execut-
ing a law fraught with such responsibilities
to the state is reduced to a minimum.
There are three groups of states in refer-
ence to their attitude in regard to what
constitutes due process of law in ordering
eugenical sterilization:
GROUP I. States which effect due
process of law through administrative dis-
cretion, or quasi-judicial boards or commis-
sions.
There is, of course, nothing to prevent
the subject about to be operated upon, to
appeal to the court for a hearing, but such
appeal must be made and decided on the
general laws of the state and not in accord-
ance with a specific provision of the sterili-
zation statute,
GROUP II. States which provide for the
investigation and ordering of eugenical
sterilization by an administrative quasi ju-
dicial board or commission, but which pro-
vide, also, for an easy and convenient
appeal to the courts by the subject.
GROUP III. States which require court
procedure in each particular case.
GROUP I.
Administrative Discretion.
1. INDIANA. The executive board con-
sists of the regular institutional physician
and two skilled surgeons, who make recom-
mendations to the board of managers of the
institution. "If, in the judgment of this
committee of experts and the board of man-
agers, procreation is inadvisable * * * it
shall be lawful for the surgeons to perform
such operations * * *."
2. CALIFORNIA. First Law: "When-
ever in the opinion of the medical superin-
tendent * * * it would be beneficial and
conducive to the benefit of the physical,
mental or moral condition of any inmate
* * * he shall call in consultation the gen-
eral superintendent • • * they may per-
form the same."
Second Law: "* * * the state com-
mission in lunacy may in its discretion, after
a careful investigation of all the circum-
stances, cause such a person to be asexual-
ized * * *"
Amendment to the Second Law of Cali-
fornia: "Before any person who has been
lawfully committed to any state hospital for
the insane * • * shall' be released or
discharged therefrom, the state commission
may
* * after examination,
Analysis of the Steriuzation Laws by Subject
135
cause such person to be asexualized, and suck
asexualization whether with or without the
consent of the patient shall be lawful
» * * tt
Law establishing the Pacific Colony. Sec-
tion 45: "Before any inmate * * * ghall
be released or discharged therefrom, the
board of trustees on the recommendation of
the superintendent * * « may cause
such person to be sterilized; and such sterili-
zation, whether with or without the consent
of the inmate, shall be lawful * * *."
3. CONNECTICUT. The institutional
physician and two skilled surgeons "* * *
shall constitute a board, the duty of which
shall be to examine such inmates of said
institutions » * * and if, in the judg-
ment of a majority of said -board, procre-
ation by any such person would produce
children with an inherited tendency to crime
* * * then said board shall appoint one
of its members to perform the operation
* * » j>
4. IOWA. First Law: "The members of
such board and the managing officer and
the surgical superintendent of such institu-
tion shall judge of such matters."
Second Law: "If a majority of them
decide that procreation by any such inmates
would produce children with a tendency to
disease * * ♦ then the physician of the
institution * * ♦ shall perform the oper-
ation."
Third Law: "* * * that whenever the
superintendent and a majority of his medical
staff shall * » * agree that it is for the
best interests of the patient and society,
they are hereby authorized to perform the
operation of sterilization * * * and pro-
vided further that the superintendent of the
hospital shall have secured the written con-
sent of the husband or wife, if the patient is
a married person, and if an unmarried per-
son, the written consent of the parent, guard-
ian or next of kin, if any there be within this
state * * •."
5. NORTH DAKOTA. "If such board in
its findings order such operation upon such
inmate, it shall, in such findings, designate
what operation is to be performed * * *."
(Section 5.)
6. KANSA-S. Second Law: The second
sterilization law of Kansas differs from the
first largely in that the first statute required
court procedure in each particular case,
whereas the second statute, that of 1917,
organizes a board . of examiners who may
make final disposition of cases nominated
to them by the authorities of the different
institutions. (Section 1.) "But before such
operation shall be performed a written
notice shall be served on such inmate, and
guardian, if there be one, of the time and
place of a meeting and hearing at least thirty
days prior thereto; and said inmate shall
have the right to be represented by counsel
and may introduce such evidence as may be
desired."
7. WISCONSIN. (Sections.) "If such
experts and superintendent unanimously find
that procreation is inadvisable, it shall be
lawful to perform such operation * * *."
8. NEBRASKA. The board of commis-
sioners of state institutions designate a board
of examiners consisting of five institutional
physicians, three of whom constitute a
quorum. "A determination or order of said
board must be concurred in by at least three
members thereof." This board, after an
investigation, may order that (Section 3)
"* * * it shall be a condition prerequisite
to the parole or discharge of such inmate
that said inmate be made sterile * * *."
(Section 4). "Before any such operation
shall be performed, the nature, character and
consequences of such operation shall be fully
explained to such inmate and to the husband,
wife, parent, guardian or nearest kin, as the
case may be, and the assent of such inmate
so far as said inmate is capable of assenting
thereto."
9. SOUTH DAKOTA. In this state the
superintendent of the institution for feeble-
minded persons makes a nomination to the
State Board of Charities. (Section 3)
"* * * that it shall be the duty of said
board * * * to determine whether it is
improper of inadvisable to allow any such
inmates to procreate * * *." If the board
so decide "* * * then the physician of
the institution * * * shall perform the
operation
♦ * * »»
GROUP II.
Administrative Discretion with Provisions
for Easy and Convenient Appeal to
Court Procedure.
1. MICHIGAN. Authority is given to the
management of any institution maintained
wholly or in part by public expense "* * *
to render incapable of procreation * * *
any person who is mentally , defective or
insane * * *." Provision is made for the
notification of the parent or guardian of
136
Anai<ysis of the Sterilization Laws by Subject
such person at least thirty days before per-
forming the operation. "* * * when said
parents or guardian object to the perform-
ance of such operation, then the question of
the sanity of such person shall be referred
to the probate court of the county in which
the institution is located, where the question
of the sanity and the necessity for this oper-
ation shall be determined as in other insane
cases before such courts."
3. OREGON. In Oregon the State Board
of Eugenics makes an investigation of the
personal and family history of inmates re-
ported to it by the superintendents of cus-
todial institutions. This Board then prepares
its findings in writing, and in case of oper-
ation deemed necessary, serves a copy of
the order "* * * on said inmate, or in
case of an insane person upon his legal
guardiaii, and if such 'insane person have no
legal guardian, then upon his nearest known
kin within the State of Oregon, and if such
person have no known kin within the State
of Oregon, then upon the custodian guardian
of such insane person."
Section 6. "Any such inmate desiring to
appeal from the decision of the said Board,
or in case the person is under guardianship
or disability, then the guardian of said in-
mate may take an appeal to the circuit court
of the county * * *."
3. WASHINGTON. According to the
second law, the duty of investigating into
and reporting upon the family history and
conditions of the inmate and decision upon
the operation are entrusted into the hands
of the institutional board of health, however,
"* * * Any such inmate desiring to ap-
peal from the decision of said board, or in
the case the person is under guardianship or
disability, then the guardian of "said inmate
may take an appeal into the superior court
of the county in which the institution, in
which the inmate is confined, is located."
"* * * Provided said notice shall be
filed within fifteen days of the date when
notice of the board's decision is served on
the inmate or his guardian, and said notice
of appeal shall stay all proceedings of said
board on said matter until the same is heard
and determined on said appeal: Provided,
further. That no operation shall be per-
formed, upon any inmate until the time for
appeal from the decision of the board has
expired." (Sec. 5.)
"* * * The trial shall be a trial de
novo at law as provided by the statutes of
the state, for the trial of actions at law.'
(Sec. 6.)
"* * * If the court or jury shall affirm
the findings of said board, said court shall
enter a judgment, adjudging that the order
of said board shall be carried out as herein
provided; if the court fail to affirm the deci-
sion of said board appealed from, then said
order shall be null and void and of no further
efifect." (Sec. 7.)
GROUP III.
Court Procedure Required in Each Case
Before Sterilization.
1. NEW JERSEY. Section 3: "* * '
previous to said hearing the said board shall
apply to any judge of the Court of Common
Pleas • * » for the assignment of coun-
sel to represent the person to be examined
* * *. All orders made under the provi-
sions of this act shall be subject to review
by the Supreme Court or any justice thereof,
and said court may upon appeal from any
order grant a stay which shall be effective
until such appeal shall have been decided."
3. NEVADA. "Whenever any person
shall be adjudged guilty of carnal abuse of a
female person under the age of ten years, or
of rape, or shall be adjudged to be an
habitual criminal, the court may, in addi-
tion to such other punishment or confine-
ment as may be imposed, direct an operation
to be performed upon such person for the
prevention of procreation * * *."
3. NEW YORK. Section 352: "The board
of examiners shall apply to any judge of the
Supreme Court or county judge of the
county in which said person is confined for
the appointment of counsel to represent the
person to be examined. * » * All orders
made under the provisions of this act shall
be subject to review by the Supreme Court
or any justice thereof, and said court may
upon appeal from any order grant a stay,
which shall be effective until such appeal
shall have been decided * * *."
4. KANSAS. First Law: The managing
authorities of the custodial institutions make
investigations concerning the inadvisability
of allowing certain of their inmates to pro-
create. (Section 1) "* * •* then said
authority shall report their conclusions with
a recommendation to the District Court or
any court of competent jurisdiction in and
for the district from which such inmate or
inmates has been committed * • *. The
Analysis of thb; Sterilization L,aws by Subject
137
court shall thereupon hear and determine the
matter."
5. WASHINGTON. "Whenever a per-
son shall be adjudged guilty of carnal abuse
of a fernale person under the age of ten
years, or of rape, or shall be adjudged to
be an habitual criminal, the court may, in
addition to such other punishment or con-
finement as may be imposed, c^irect an
operation to be performed upon such person
for the prevention of procreation."
19. RECORDS AND REPORTS
REQUIRED BY LAW.
It seems obvious that a thing so important
to the welfare of the state as eugenical steril-
ization should be accompanied by permanent
reports and records which should remain
the property of the state. However, many
of the statutes are by text or implication
optional so far as their enforcement is con-
cerned, and perhaps on this account in many
cases no provision has been made for ade-
quate records of case and family histories,
the procedure of selection, and the actual
sterilizing operations performed. H in
America a body of professional eugenicists
and expert field workers is to be developed
for the purpose of enforcing the sterilization
statutes, then certainly the keeping of ac-
curate records would aid greatly in the
efficiency of the work of the persons
entrusted with the investigations demanded
by the statutes, and in the actual application
of the law to particular cases.
Perhaps one reason for omitting legisla-
tive demands for permanent records is that
often the person entrusted to enforce the
law is an ex officio executive agent whose
principal interests and duties are with some
other state enterprise and who would be
expected to include an account of his activi-
ties in enforcing this particular statute with
an account of his primary business.
The laws of the several states in this
regard may be summarized as follows:
1. INDIANA. No reference to records.
3. WASHINGTON. First Law. No ref-
erenca to records, but since the order for
sterilization may be imposed only as a part
of a sentence in a court of record, the evi-
dence concerning the particular convict's
history and personality and records of his
order for sterilization would be permanently
on file in the court archives.
Second Law. (Sec. 4.) After fully in-
quiring into the condition of each of such
inmates said board shall make separate
written findings for each of the inmates
whose condition has been examined into,
and the same shall be preserved in the
records of said board, and a copy thereof
shall be furnished to the superintendent of
the institution in which the inmate is con-
fined, and if an operation is deemed neces-
sary by said board, then a copy of the order
of said board shall forthwith be served on
said inmate, or in the case of an insane
person, upon his legal guardian, and if such
insane person have no legal guardian, then
upon his nearest known kin within the State
of Washington, and if such insane person
have no known kin within the State of
Washington, then upon the custodian
guardian of such insane person.
3. CALIFORNIA. First Statute: No
provision for records.
Second Statute: No provision for records.
4. CONNECTICUT. No provision for
records.
5. NEVADA. As in Washington, a
record of the history and personality of the
individual convict and the order for his
sterilization would automatically be recorded
in the court's archives.
6. IOWA. First Law: No reference to
records.
Second Law: No reference to records.
Third Law. Section 3: "The board of
control shall make an annual report to the
governor of the state fully covering their
proceedings under the authority of this act,
and also their observations and statistics re-
garding its benefits."
7. NEW JERSEY. (Section 4.) "The
record taken upon the examination of every
such inmate, signed by the said board of
examiners, shall be preserved in the institu-
tion where such inmate is confined, and a
copy thereof filed with the Commissioner of
Charities and Corrections, and one year
after the performing of the operation the
superintendent or other administrative officer
of the institution wherein such inmate is
confined shall report to the board of exami-
ners the condition of the inmate and the
effect of such operation upon such inmate.
A copy of the report shall be filed with the
record of the examination."
8. NEW YORK. (Section 352.) "The
record taken upon the examination of every
such inmate, signed by the said board of
exaniiners, shall be preserved by the institu-
tion where said inmate is confined, and one
year after the performanc of the operation
138
Analysis of the Sterilization Laws by Subject
the superintendent or other administrative
oflficer of the institution wherein such inmate
is confined shall report to the board of ex-
aminers the condition of the inmate and the
effect of such operation upon such inmate,
and a copy of the report shall be filed with
the record of the examination.''
9. NORTH DAKOTA. (Section 3.)
"When the superintendent of any such insti-
tution shall deem it advisable that such
operation be performed on any one or more
of the inmates thereof he shall make such
recommendation in writing signed by him,
and file one copy thereof with the board of
control and one with the chief medical offi-
cer of such institution, whereupon the chief
medical ofiicer of such institution shall forth-
with call a meeting of such board of ex-
aminers, to be held at such institution at a
date not less than fifteen days after the
issuance of such call, and such call shall be
in writing, signed by such chief medical
officer and shall clearly set forth the date
and object of such meeting and shall con-
tain the names of all inmates whose cases
are to be considered at such meeting."
(Section 5.) "After fully inquiring into
the condition of each such person such
board of examiners shall make separate
written findings for each of the persons
whose condition has been inquired into
» * * »»
(Section 6.) "Such institutions shall keep
all files in any proceedings under this act and
full minutes of such meetings, and for that
purpose the chief medical officer of such
institution shall be the secretary of such
board of examiners and custodian of its
records."
10. MICHIGAN. (Section 4.) "In relation
to each individual person sterilized under the
provisions of this act, the board of control
of the institution in which said person is an
inmate shall file with the State Board of
Public Health of Michigan a written record
setting forth the name, age, sex, nationality,
type or class of mental defectiveness of said
person, the nature of the operation per-
formed, the subsequent mental and physical
condition as affected by said operation:
Provided, That said records shall not be for
public inspection, but may be open to in-
spection of the members of the board of
control of the aforesaid institutions and of
the members of the immediate family of the
person operated upon, or any physician or
surgeon designated by them."
11. KANSAS. First Law: No reference
to records.
Second Law. (Section 6.) "Such institu-
tion shall keep all files in any proceedings
under this act and full minutes of such meet-
ings, and for that purpose the chief medical
officer of such institution shall be the secre-
tary of such board of examiners and custo-
dian of its records."
12. WISCONSIN. No reference to rec-.
ords.
13. NEBRASKA. No reference to rec-
ords.
14. OREGON. (Sections.) "After fully
inquiring into the condition of each of such
inmates said Board shall make separate
written findings for each of the inmates
whose condition has been examined into,
and the same shall be preserved in the
records of the said Board, and a copy thereof
shall be furnished to the superintendent of
the institution in which the inmate is con-
fined, and if an operation is deemed neces-
sary by said Board, then a copy of the order
of said Board shall forthwith be served on
said inmate, or in case of an insane person
upon his legal guardian, and if such insane
person have no legal guardian, then upon
his nearest known kin within the State of
Oregon, and if such person have no kin
within the State of Oregon, then upon the
custodian guardian of such insane person.''
15. SOUTH DAKOTA. (Section 1.) "It
shall be the duty of the superintendent of the
State Home for Feeble-Minded Persons to
examine into the mental and physical condi-
tion, the records and family history of the
inmates of said institution • • • and to
make an annual report of said examination
to the State Board of Charities and Cor-
rections."
Inquiries addressed to the executive agents
of the different sterilization laws have
elicited the fact that records of their doings
are for the most part very meager. Indeed,
in some cases, especially those in which the
law is a dead letter, absolutely no record
of any sort appears to have been prepared
or preserved on account of business pertain-
ing to the execution of the sterilization
statute. In other cases where there was
some executive activity, the records are most
meager.
It would seem fitting that the future sterili-
zation statutes should order their executive
agents to prepare and to preserve as the
property of the state • complete records of
Analysis of the Sterilization Laws by Subject
139
their own transactions as well as of the case
and family history investigations and the
analysis of pedigree records, and not trust
to incidental and fragmentary records as
preserved in the archives of • courts and
minutes prepared as memoranda for tempo-
rary use.
20. COSTS AND APPROPRIATIONS.
No sterilization statute can be expected to
function unless its executive agents are sup-
plied with ample funds or salaries, and field
and office expenses. The existing laws for
the most part either make the execution of
the law an ex ofHcio duty of a given official,
and give no additional compensation there-
for, or provide a small fee system quite
inadequate to the purpose. In no case is
there an appropriation provided for the
necessary pedigree studies. The only funds
mentioned in the statutes are those" available
for legal defense of an individual nominated
for sterilization, and small surgical fees for
the actual performance of the operation.
New York made a special appropriation of
$29,825.00, and New Jersey of $500.00 for
the expenses of their respective commissions.
An analysis of the statutes shows the fol-
lowing situation:
1. INDIANA: "Provided that in no case
shall the consultation fee be more than three
dollars to each expert, to be paid out of the
funds appropriated for the maintenance of
such institutions." Chap. 215, Laws of 1907.
2. WASHINGTON. "The state shall be
liable, under this act, only for the actual
traveling expenses of the members of the
board incurred in the performance of their
duties, and the actual and necessary expense
incident to the investigations of said board
and an j^peal therefrom, which shall be
paid upon vouchers signed by the person, re-
ceiving such compensation and expense from
the moneys appropriated for the mainten-
ance of the institution where such examina-
ton is held." Section 12, Chap. 53, Law of
1921.
3. CALIFORNIA: "* * * the superin-
tendent of any state hospital shall perform
such operation or -cause the same to be per-
formed without charge therefor." Section
3, Chap. 363, Laws of 1913.
4. CONNECTICUT: "* * * and the
surgeon performing such operation shall re-
ceive from the state such compensation for
services rendered as the warden of the state
prison or superintendent of either of such
hospitals shall deem reasonable." Section
1, Chap. 309, Public Acts 1909.
5. NEW JERSEY. In case the person
nominated for sterilization is not able to
pay for legal counsel (Section 3, Chapter
190, Laws of 1911) "* * * the judge of
the Court of Common Pleas appointing any
counsel under this act may fix the compen-
sation to be paid him, and it shall be paid
as other court expenses are now paid."
"There shall be paid out of the funds
appropriated for maintenance of such insti-
tutions to each physician of said board of
examiners, a compensation of not more than
ten ($10) per diem for each day actually
given to such work or examination, and his
actual and necessary expenses in going to,
holding and returning from such examina-
tion.
"When in the judgment of the board of
examiners it is necessary to secure the assist-
ance of a surgeon outside the medical staff
of the institution to perform or assist in
said operation, the necessary expenses of
such surgeon shall be paid from the mainte-
nance account of such institution." Section
5, Chap. 190, Laws of 1911.
6. NEW YORK: "Immediately after the
passage of this act the Governor shall ap-
point one surgeon, one neurologist and one
practitioner of medicine, each with at least
ten years' experience in the actual practice of
his profession, to be known as the board of
examiners of feeble-minded, criminals and
other defectives, which board is hereby
created. The compensation of the members
of such board shall be ten dollars per diem
for each day actually engaged in the per-
formance of the duties of the board, and
their actual and necessary traveling ex-
penses." Section 350, Chapter 445, Laws of
1912.
In case the person nominated for steriliza-
tion is not able to pay for legal counsel,
"the judge of the court appointing any
counsel under this act may fix the compen-
sation to be paid him." Section 352, Chapter
445, Laws of 1912.
7. NORTH DAKOTA: Referring to the
member of the board who by statute must
be a physician or surgeon. Section 2 of
Chapter 56 of the Laws of 1913, says: "The
per diem compensation of such member so
appointed shall be fixed by the state board
of control in the letter of appointment and
shall not be in excess of $10.00 per day, a
duplicate of this letter shall be filed with the
140
Analysis of the Steriuzation Laws by Subject
state auditor, and the per diem and actual
.necessary expenses of such member shall be
allowed and paid in the same manner as is
provided for by law for the payment of the
salaries and expenses of the members, agents
and employees of the state board of control."
8. MICHIGAN: In this state the boards
and officers of the institutions constitute the
boards which examine inmates of their
particular institutions, with the view to de-
termining upon eugenical sterilization. Sec-
tion 2. "* * * and the board making
such examination, and the institution physi-
cian or surgeon, shall receive no extra com-
pensation therefor." "Provided further, that
these physicians shall be allowed for their
services the compensation fixed by statutes
for the examination and certification of an
insane person. The several sums necessary
to carry out the .provisions of this act shall
be certified to be correct by the respective
boards and shall be paid out of the general
fund of the State upon the warrant of the
auditor-general." Section 3, Act 34, Public
Acts 1913.
9. KANSAS: First Law, Chapter 305,
Laws of 1913, Section 1, "* * * and the sur-
geon performing the operation shall receive
from the state such compensation for the
service rendered as the board of administra-
tion shall deem reasonable, to be paid out
of the maintenance fund of the institution
in which such person is confined."
Second Law, Chapter 299, Laws of 1917,
Section 5. "If the surgeon is not connected
with such institution, the governing board
can make reasonable terms for compensa-
tion and such fee shall be paid from the fund
provided for the maintenance of such institu-
tion in the manner provided by law."
10. WISCONSIN: Chapter 693, Laws of
1913, Section 5. "The said experts shall
receive as compensation a sum to be fixed
by the state board of control, which shall
not exceed ten dollars per day and expenses,
and such experts shall only be paid for the
actual number of days consumed in the per-
formance of their duties."
11. NEBRASKA: In this state the board
of commissioners of state institutions desig-
nate members from their medical staffs to
constitute a board of examiners.' * * * The
members of said board of examiners shall
receive no compensation for their services
as such examiners, but shall be reimbursed
their actual and necessary traveling expenses
from the funds of the respective institutions
whose inmates are examined by them. The
personnel of said board of examiners may
be changed from time to time by said board
of commissioners of state institutions as
may be found necessary or convenient."
Section 2, Chap. 237, Laws of 1915.
12. OREGON: In this state the members
of the Board of Eugenics are ex officio, and
"* * * the members of said Board shall
serve without compensation." Section 1,
Chapter 279, Laws of 1917.
"The State shall be liable, under this Act,
only for the actual traveling expenses of the
members of the Board incurred in the per-
formance of their duties, and the actual and
necessary expense incident to the investiga-
tions of said Board and an appeal there-
from." Section 12, Chapter 279, Laws of
1917.
COMMENT: COSTS AND APPROPRI-
ATIONS'
The principal lesson to be learned from
correlating these legislative facts with the
practical working out of the statutes is that
in order to function as designed, the enforce-
ment of the law must be delegated to an
expert official who is paid a reasonable
salary, and who must devote his^ntire time
and attention to the duties of his "office. The
payment for field investigations, for the ex-
penses incurred in court procedure, and for
the actual surgical operations should be
covered by an appropriation to be expended
at the direction of the State Eugenicist.
'See form 11a p. 494,
CHAPTER VI.
ANALYTICAL OUTLINE OF LITIGATION GROWING OUT OF THE
SEVERAL EUGENICAL STERILIZATION STATUTES
PREVIOUS TO JANUARY 1, 1922.
(Including a statement of the resulting legal status
of each statute affected.)
Introduction 142
1. Washington 143
S. New Jersey 143
3. Iowa 143
4. Michigan 143
5. New York 144
6. Nevada 145
7. Indiana 145
8. Oregon 146
Summary: The Present Legal Status of Eugenical Sterilization 147
142
Analytical Outline of Litigation
INTRODUCTION.
Since 1907 fifteen different states have
enacted statutes authorizing or commanding
that sexual sterilization (of one type or
another be applied to certain inmates of
various state and other public institutions
for the socially inadequate, or to persons
duly convicted of certain crimes.
In the following named states these
statutes had been tested by the courts prior
to January 1, 1922:
1. Washington, 1911-1912.
2. New Jersey, 1912-1913.
3. Iowa, 1914-1917.
4. Michigan, 1916-1918.
5. New York, 1915-1930.
6. Nevada, 1915-1918.
7. Indiana, 1919-1921.
8. Oregon, 1931-1922.
1. WASHINGTON.
A. NATURE OF STATUTE.
Date and Reference. First Statute. March
22, 1909, Chapter 249, Section 35, Criminal
Code.
Motive. Purely punitive.
Applicability. Habitual criminals or those
adjudged guilty of rape.
Mandatory Feature. Optional with court
as additional punishment.
Legal Viewpoint. Court procedure neces-
sary in each case.
Type of Operation Authorized. An oper-
ation for the prevention of procreation.
B. EXTENT OF OPERATIONS.
One case only. (Peter Feilen.)
C. LITIGATION.
1. TRIBUNAL. The Superior Court of
King County.
Case. State of Washington vs. Peter
Feilen (7 Wash., 65.)
Date of Decision. September 30, 1911.
Decision. Ordered sterilization by vasec-
tomy of Peter Feilen as a punishment for
rape.
Reason. Validity of statute, guilt and
moral turpitude of defendant.
Resulting Legal Status of Statute. Statute
is apparently functioning. Trial Court may
order sterilization as a part of the punish-
ment for certain crimes.
2. TRIBUNAL. Supreme Court of the
State of Washington.
Case. State of Washington vs. Peter
Feilen (126 Pacific Reporter, 75.)
Date of Decision." September 3, 1918.
Decision. Sustained decision of Superior
Court of King County.
Reason. Statute not contrary to constitu-
tional provision of State which forbids cruel
punishment. No provision in state constitu-
tion against unusual punishment.
Resulting Legal Status of Statute. The
statute is valid.
Note: The second Washington statute,
March 8, 1931, which is principally eugenical
in its motives, has not yet been the subject
of litigation.
2. NEW JERSEY.
A. NATURE OF STATUTE.
Date and Reference. April 31, 1911, Chap-
ter 190.
Motive. Purely eugenical.
Applicability. Certain feeble-minded, epi-
leptic, criminal and other defective inmates
of state and county reformatory, charitable
and penal institutions.
Mandatory Feature. Selection optional
with Commission after hearing Counsel for
inmate appointed by Court of Common
Pleas.
Legal Viewpoint Administrative function
subject to court review.
Tjrpe of Operation Authorized. "Such
operation for prevention of procreation as
shall be decided by said Board of Examiners
to be most effective.''
B. EXTENT OF OPERATIONS.
No one was ever actually sterilized under
this law.
C. LITIGATION.
1. TRIBUNAL. Board of Examiners of
feeble-minded (including imbeciles, idiots
and morons), epileptics, criminals and other
defectives.
Case. Alice Smith, an epileptic, inmate of
the State Village at Skillman.
Date of Decision. May M, 1913.
Decision. Operation of salpingectomy
ordered to be performed upon the said Alice
Smith.
Reason. An epileptic in the case of whom
procreation is inadvisable with no probabil-
ity of improvement to the extent to render
procreation advisable.
Resulting Legal Status of Statute. Statute
is apparently functioning.
2. TRIBUNAL. Supreme Court.
Case. Alice Smith vs. Board of Examiners
of Feeble-Minded (88 Atl. 963.)
Date of Decision. November 18, 1913.
Analyticai, Outlinh; of Litigation
143
Decision. Reversed the decision of the
Board of Examiners and held the statute un-
constitutional.
Reason. Denies to epileptics in state insti-
tutions protection of the laws equal to that
afforded epileptics who are not institutional
charges, thus violating Section 1, Article
XIV of the United States Constitution.
Resulting Legal Status of Statute. Statute
is unenforceable so far as its application to
epileptics is concerned. Apparently the law
is still applicable to social inadequates other
than epileptics in county and state institu-
tions.
3. IOWA.
A. NATURE OF STATUTE.
Date of Reference. April 19, 1913, Chapter
187, second statute on subject.
Motive. Mainly eugenical, partly punitive
and partly therapeutic.
Applicability. Inmates of certain state
institutions for the insane, criminalistic and
feeble-minded. Volunteer applicants with
epilepsy or syphilis.
Mandatory Features. Compulsory for in-
mates twice convicted of felony, or sex-
offense, or for one offense of white slavery.
Legal Viewpoint. Administrative function
of State Board of Parole acting with institu-
tion officers.
Type of Operation Authorized. "Opera-
tion of vasectomy or ligation of the Fallo-
pian tubes."
B. EXTENT OF OPERATIONS.
Under all three statutes forty-nine cases
(thirty-eight vasectomies and eleven sal-
pingectomies) have been performed up to
January 1, 1921. All of these are from
institutions for the insane.
C. LITIGATION.
1. TRIBUNAL. Board of Parole.
Case. Rudolph Davis, No. 10,406, an in-
mate of the penitentiary at Fort Madison,
twice convicted of felony.
Date of Decision. March 5, 1914.
Decision. Operation of vasectomy or-
dered to be performed upon said Rudolph
Davis.
Reason. An inmate of the State Peniten-
tiary who was twice convicted of felony.
Resulting Legal Status of Statute. Statute
is apparently functioning.
2. TRIBUNAL. United States District
Court, Southern Iowa, Eastern Division.-
Case. Rudolph Davis vs. William. H.
Berry, et al (216 Fed. Rep. 419).
Date of Decision. June 34, 1914, Re-
versed decision of the District Court.
Reason, l. No provision for due process
of law, thus violating Section 1, Article XIV
United States Constitution. 3. Cruel and
unusual punishment. 3. Bill of attainder.
Resulting Legal Status of Statute. Statute
is unenforceable.
3. TRIBUNAL. United States Supreme
Court.
Case. William H. Berry et al. vs. Rudolph
Davis (United States Report, Vol. 342, pages
468-470).
Date of Decision. January 15, 1917.
Decision. Reversed the decision of June
24, 1914, of the District Court.
Reason. Because meanwhile (July 4,
1915) the State of Iowa repealed the Act of
April 19, 1913, thus the case was not tried on
its merits.
Resulting Legal Status of Statute. Statute
repealed July 4, 1915.
4. MICHIGAN.
A. NATURE OF STATUTE.
Date and Reference. April 1, 1913, Act
No. 34.
Motive. Mainly eugenical, also thera-
peutic.
Applicability. Inmates of state institu-
tions maintained wholly or in part by public
expense, duly adjudicated mentally deficient
or insane.
Mandatory Features. Selection optional
with management of institution.
Legal Viewpoint. Administrative func-
tion, subject to court review if parents or
guardian object.
Type of Operation Authorized. "Opera-
tion of vasectomy or salpingectomy or any
other operation or improvement on vasec-
tomy or salpingectomy as the case may be.''
B. EXTENT OF OPERATIONS.
One case only, a salpingectomy by the
psychopathist of the State Hospital at Ann
Arbor.
C. LITIGATION.
1. TRIBUNAL. Probate Court of La-
peer County.
Case. In the matter of Nora Reynolds, a
mentally defective inmate of the Michigan
Home and Training School.
Date of Decision. May 4, 1916.
Decision. The statute is unconstitutional.
Reason. Denies equal protection of the
law.
""aj ":?! •
144
Analytical Outune of Litigation
Resulting Legal Status of Statute. Statute
is unenforceable.
2. TRIBUNAL. Circuit Court of La-
peer County.
Case. In Re Nora Reynolds, a Mentally
Defective Person. Appeal from Probate
Court.
Date of Decision: September 10, 1917.
Decision. Statute (Act 34 of the Public
Act of 1913).
Reason. Class legislation; applied to too
limited a portion of the feeble-minded popu-
lation.
3. TRIBUNAL. Supreme Court of the
State of Michigan.
Case. H. A. Haynes, Superintendent of
the Michigan Home and Training School,
Relator vs. William B. Williams, Circuit
Judge, respondent (N. 28, 151), (166 N. W.
Rep. 938).
Date of Decision. March 28, 1918.
Decision. Sustained the decisions of the
inferior courts.
Reason. The statute is unconstitutional
because it does not afford those affected by
it equal protection under the law.
Resulting Legal Status of Statute. Statute
is not valid.
5. NEW YORK.
A. NATURE OF STATUTE.
Date and Reference. April 16, 1912, Chap-
ter 445.
Motive. Mainly eugenical, partly thera-
peutic.
Applicability. Inmates of certain institu-
tions in state for insane, feeble-minded, and
dependent, also confirmed criminals.
Mandatory Features. Selection optional
with Commission. Counsel for inmate ap-
pointed by Supreme Court or County Judge.
Legal Vewpoint. Administrative orders
subject to court review.
Type of Operation Authorized. "Such
operation for prevention of procreation as
shall be decided by said board to be most
effective."
B. EXTENT OF OPERATIONS.
In all forty-two eugenical sterilization
operations were performed in New York
State Institutions while the statute was in
force, but none of them was performed under
this statute; all were performed by special
arrangement with the patients and their
families under the laws and customs govern-
ing ordinary surgical operations. Of these
forty-two operations, one was vasectomy
performed by the Auburn State Prison;
twelve salpingectomies by the Buffalo State
Hospital; and twenty-four salpingectomies
and five ovariotomies by the Gowanda State
Hospital at Collins. Neither the litigation
nor the repeal of the law on April 10, 1921,
is affecting these operations.
C. LITIGATION.
1. TRIBUNAL. Board of Examiners of
feeble-minded (including idiots, imbeciles
and morons), epileptics and other defectives.
Case. Frank Osborn, feeble-minded in-
mate of Rome Custodial Asylum. Informal
understanding between the Board of Ex-
aminers and the Superintendent of the
asylum that the above named inmate be se-
lected for a test case. No records.
Date of Decision. June 1, 1915. Petition
of Lemon Thomson of the Board of Exam-
iners to the Supreme Court of Albany
County to appoint counsel for Frank
Osborn.
Decision. No order for vasectomization
of Frank Osborn was issued.
Reason. Not given.
Resulting Legal Status of Statute. Statute
is apparently functioning.
2. TRIBUNAL. Supreme Court of
Albany County.
Case. Frank Osborn vs. Lemon Thom-
son, Charles H. Andrews, William J. Wans-
boro, composing Board of . Examiners of
Feeble-Minded, criminals and other defec-
tives. (169 N. Y. Sup. 638)
Date of Decision. September 17, 1915.
Decision. Held the statute "unconstitu-
tional and invalid" and issued an order in
which the Board of Examiners was "perpet-
ually enjoined and restrained from perform-
ing or permitting to be performed, afore-
said threatened operation."
Reason. Not stated.
Restating Legal Status of Statute. Statute
is unenforceable.
3. TRIBUNAL. Special Term of the
Supreme Court — Albany County.
Case. Frank Osborn vs. Lemon Thom-
son, Charles H. Andrews, William J. Wans-
boro, composing Board of Examiners of
feeble-minded, criminals and other defec-
tives. (103 Misc. Rep. 123), (171 N. Y. Sup.
1094.)
Date of Decision. March 8, 1918.
Decision. Sustained findings of Septem-
ber 17, 1915, of the same court perpetually
DetaiIiEd Review of Litigation — Washington
145
enjoining the Board of Examiners from ster-
ilizing by vasectomy, Frank Osborn, inmate
of Rome Custodial Asylum, and holding the
statute unconstitutional and invalid.
Reason. The statute denies equal pro-
tection of the laws guaranteed by Section 1,
Article XIV, of the Constitution of the
United States.
Resulting Legal Status of Statute. Statute
is unenforceable.
4. TRIBUNAL. Supreme Court of the
State of New York, Appellate Division —
Third Judicial Department. (185 App. Div.
902.)
Case. Frank Osborn, Plaintiflf-Respond-
ent vs. Lemon Thomson, et aL, composing
Board of Examiners, Defendants-Appellants.
Date of Decision. July 1, 1918..
Decision. "Judgment unanimously af-
firmed on the opinion of Rudd, J., at spe-
cial term."
Reason. Same as above.
Resulting Legal Status of Statute. Statute
is unenforceable.
5. TRIBUNAL. Court of Appeals.
Case. Frank Osborn, Plaintiff-Respon-
dent vs. Lemon Thomson, et al., composing
Board of Examiners, Defendants-Appel-
lants.
Date of Decision. Case pending. (Ad-
vance Sheets No. 950, March 15, 1919)
Resulting Legal Status of Statute. Pend-
ing decision by the Court of Appeals, the
statute is unenforceable in the test case, and
by implication generally, by decision (July
1, 1918) of the Supreme Court of the State
of New York, Appellate Division, Third
Judicial District. Upon the repeal of the
statute on May 10, 1920 (Chap. 619 of Laws
of 1920), the questions involved became
academic and the appeal in the Court of
Appeals was withdrawn.
6. NEVADA.
A. NATURE OF STATUTE.
Date and Reference. March 17, 1911, Sec-
tion 28, Crime and Punishments Act.
Motive. Purely punitive.
Applicability. Habitual criminals or those
adjudged guilty of rape.
Mandatory Features. Optional with the
court as additional punishment.
Legal Viewpoint. Court procedure nec-
essary in each case.
Type of Operation Authorized. "Opera-
tion for prevention of procreation provided
the operation so performed shall not con-
sist of castration."
B. EXTENT OF OPERATIONS.
No operations were performed under this
law.
C. LITIGATION.
1. TRIBUNAL. District Court of the
4th Judicial District of Nevada, Elko County.
Case. State of Nevada vs. Pearley C. Mic-
kle.
Date of Decision. August 14, 1915.
Decision. Ordered sterilization by vasec-
tomy of Pearley C. Mickle as additional pun-
ishment.
Reason. 1. Statute not contrary to con-
stitutional provisions of state which pro-
hibit cruel and unusual punishment.
2. Moral turpitude of defendant.
Resulting Legal Status of Statute. Statute
is apparently functioning.
1. TRIBUNAL. United States District
Court, District of Nevada.
Case. State of Nevada vs. Pearley C.
Mickle. (Not published)
Date of Decision. May 25, 1918.
Decision. Statute is unconstitutional.
Reason. Provides an unusual punishment
and is therefore 'contrary to Section 6, Arti-
cle 1, of the Constitution of Nevada, which
forbids "cruel or unusual punishment."
(Constitution of Washington forbids only
cruel punishment.)
Resulting Legal Status of Statute. Statute
is not valid.
7. INDIANA.
A. NATURE OF STATUTE.
Date and Reference. March 9, 1907, Chap-
ter 215, Laws of 1907.
Motive. Purely eugenic.
Applicability. Inmates of all state insti-
tutions charged with the case of "confirmed
criminals, idiots, imbeciles and rapists''
deemed by a commission of three surgeons
to be unimprovable, physically and mental-
ly, and unfit for procreation.
Mandatory Feature. Compulsory to ap-
point commissions but not compulsory to
present cases for their consideration.
Legal Viewpoint Administrative proced-
ure by commission.
Type of Operation Authorized. "Such op-
eration for the prevention of procreation as
shall be decided safest and most efifective."
B. EXTENT OF OPERATIONS.
Indiana was a pioneer state in eugenical
sterilization. All such operations in this
state were performed by Dr. Harry C. Sharp,
146
Analyticai, Outline of Litigation
Surgeon of the Jeffersonville Reformatory
on male inmates of that institution. Begin-
ning in 1899, eight years before the enact-
ment of the Sterilization Act in 1907, he per-
formed one hundred seventy-six vasec-
tomies on men who desired the operation
upon being discharged from state custody.
After the law was enacted he performed
one hundred eighteen additional opera-
tions. All such operations, however, ceased
upon the inauguration of Governor Thomas
R. Marshall in 1909. Since that date and
until the initiation of the present test case
this statute has been a dead letter.
C. LITIGATION.
1. TRIBUNAL. Circuit Court of Clark
County.
Case. Warren Wallace Smith, by Lincoln
E. Lankford, his next friend, vs. Charles F.
Williams, as Chief Physician of the Indiana
Reformatory, et al. (September 25, 1919)
Date of Decision. December 4, 1919.
Decision. Permanent injunction granted
against the enforcement of the act against
the plaintiff.
Reason. Act of 1907 (Chapter 216) is un-
constitutional because it denies those persons
subject to it the right to free administration
of justice in open court, that is, it does not
provide adequately for due process of law.
Resulting Legal Status of Statute. Action
under the law suspended pending the deci-
sion of the Supreme Court of the State to
which the case was appealed by the de-
fendant.
2. TRIBUNAL. Supreme Court of the'
State of Indiana.
Case. Charles F. Williams, as Chief Phy-
sician of the Indiana Reformatory, and Jo-
seph E. Hennings, Alvin Padgett, John H.
Weathers, and Thomas A. Daily, as mem-
bers of the Board of Managers of the In-
diana Reformatory, Appellants, vs. Warren
Wallace Smith, by Lincoln E. Lankford, his
next friend. Appellee.
Date of Decision. May 11, 1921.
Decision. Sustained the decision of the
trial court, which granted a permanent in-
junction against the enforcement of the act
by the defendant against the plaintiff.
Reason. The Act of 1907 (Chapter 816)
is unconstitutional because it is "in viola-
tion of the 14th amendment to the Federal
Constitution in that it denies appellee due
process."
Resulting Legal Status of Statute. The
statute is not valid.
8. OREGON.
A. NATURE OF STATUTE.
Date and Reference. February 19, 1917.
Chapter S79, General Laws of 1917.
Motive. Purely eugenical and therapeutic.
Applicability. Feeble-minded, insane,' epi-
leptic, habitual criminals, moral degenerates
and sexual perverts, who may be inmates of
institutions maintained by public expense.
Mandatory Feature. Compulsory with
State Board of Eugenics to examine into all
cases of inmates, procreation by whom would
produce children with degenerate hereditary
traits.
Legal Viewpoint Administrative function
of State Board of Eugenics, subject to ap-
peal by inmate or his legal guardian.
Type of Operation Authorized. "* * * such
type of sterilization as may be deemed best
by said Board."
B. EXTENT OF OPERATIONS.
Under this statute 127 cases (2 vasecto-
mies, 66 castrations, 40 salpingectomies and
19 ovariotomies) have been performed up to
January 1, 1921; 114 of these were from in-
stitutions for the insane, 10 from the insti-
tution for feeble-minded and 3 from the
State Penitentiary at Salem.
C. LITIGATION.
1. TRIBUNAL. Oregon State Board of
Eugenics.
Case. Jacob Cline, a feeble-minded, insane,
epileptic, habitual criminal and sexual per-
vert, committed to the Oregon State Peni-
tentiary to serve from four to ten years for
rape.
Date of Decision. January 27th, 1921.
Decision. That operation of sterilization
by emasculation be performed on said Jacob
Cline.
Reason. For the betterment of the physical,
mental, neural and psychic condition of the
said Jacob Cline, and not in any manner as
a punitive measure.
Resulting Legal Status of Statute. Stat-
ute is apparently functioning.
2. TRIBUNAL. Circuit Court of the
State of Oregon for the County of Marion.
Case. Jacob Cline vs. Oregon State
Board of Eugenics.
Date of Decision. December 13, 1921.
Decision. Proceeding against Jacob Cline
ordered dismissed.
Reason. Statute held unconstitutional and
void because it violates that Clause of Sec-
tion 1 of the 14th Amendment of the U. S.
Analytical Outline of Litigation
147
Constitution which provides that no State
"shall deprive any person of life, liberty or
property without due process of law."
Resulting Legal Status of Statute. Stat-
ute unenforceable.
SUMMARY:
THE PRESENT LEGAL STATUS OF
EUGENICAL STERILIZATION.
The legal situation in reference to the
power of the State to enact eugenical sterili-
zation is summarized as follows:
1. A state may, in the proper and con-
stitutional exercise of its police power, en-
act practical and enforceable eugenical ster-
ilization laws, devoid of punitive features,
but which may include criminals, and which
have for their sole purpose the improvement
of the natural hereditary physical, mental and
moral endowment of future generations;
provided, (a) that such laws are not so un-
duly discriminatory in their application as to
constitute the denial of equal protection of
the laws guaranteed by Section 1, Article
XIV, of the Constitution of the United
States, to all of the citizens of all the states,
and (b.) that such statutes provide for due
process of law in their administration.
2. A law which defines a natural class of
undesirable parents without unnatural sub-
classification and commands that eugenical
sterilization be applied to all of the mem-
bers of the general class who are sexually
fertile, or who are approaching the repro-
ductive period with prospects of sexual fer-
tility, most probably would not be declared
unconstitutional by any of our states on the
grounds either of (a) an unwarranted ex-
tension of the police power in the interests
of the general welfare, nor, (b) as consti-
tuting "class legislation" in the denial of
equal protection of the laws.
3. It is probable that eugenical sterili-
zation made applicable to one sex only would
not on account of such limitation be held
unduly discriminatory, and consequently
■'class legislation," in any of our states, al-
though no sound eugenical reason can be
advanced for limiting sexual sterilization to
cacogenical persons of either sex.
4. It remains to be decided from future
litigation whether the constitutional pro-
vision against "class legislation'' will be
violated by applying eugenical sterilization
to a natural class, such as the hereditary
feeble-minded, who are inmates of institu-
tions, unless persons who are members of
the same natural class — that is, those who
are equally feeble-minded from defective
heredity — in the population at large be
equally subject to the same statutory pro-
visions. (See N. J. Case p. 174; N. Y.
Case p. 334, Mich. Case p. 313.)
5. Although supported by the courts of
the State of Washington, it is probable that
punitive sterilization will be forbidden by
the courts as repugnant to the spirit of our
constitutional provisions against cruel and
unusual punishment. (See Wash. Case p.
159; Nev. Casep. 345; Iowa Case pp. 186, 200.
6. Surgical operations primarily for sound
medical reasons, which incidentally and not
purposely involve the destruction of the re-
productive functions, are amply controlled by
the existing statutes governing medical and
surgical practice.
7. It is probable that compulsory and
involuntary eugenical sterilization will be
considered by the courts of most of our
states to be of such import both to society
and to the individual that "due process of
law" will be held to involve court procedure,
with the right to be heard, and a decision
based solely upon the law and the evidence.
The chronic nature of cacogenesis, implying
ample time for exact determination, as op-
posed to the acute necessity arising in the
case of needed vaccination and quarantine,
is an additional reason why sound eugenical
policy and justice should demand court pro-
cedure in each case of compulsory sterili-
zation. In the long run conservative court
procedure will, doubtless, prove to be the
safest and most practical policy.
On the other hand, it appears that in the
case of eugenical sterilization by the consent
of a patently cacogenic individual or his or
her family or legal guardian, "due process of
law" will be held to be satisfied by minis-
terial discretion not involving court pro-
cedure in each particular case. (See the Third
Iowa [voluntary] Law, p. 23, and litigation
growing out of the Second [compulsory]
Iowa Law p. 32.)
-»^'^
CHAPTER VII.
DETAILED REVIEW OF LITIGATION GROWING OUT OF THE
SEVERAL EUGENICAL STERILIZATION STATUTES.
PART I. WASHINGTON.
1. Superior Court 149
2. State Supreme Court
a. Brief of Appellant 149
b. Brief of Respondent 153
c. Decision of Supreme Court 159
Detailed Review oe Litigation — Washington
149
I. WASHINGTON. (Chapter 349, Sec-
tion 35, Criminal Code, March 32, 1909.)
The first Washington sterilization statute
is purely punitive, consequently it applies only
to persons who have been duly convicted of
certain crimes. In such cases it is obvious
that the order for sterilization must be made
a part and parcel of the punishment set
forth in the sentence, otherwise if imprison-
ment be a part of the punishment it would
constitute a second punishment for the
same ofifense to order sterilization at a later
date. This feature of the sentence was regu-
lar enough, but the law was tested on the
ground of its providing for a "cruel and
unusual" punishment.
1. SUPERIOR COURT.
September 30, 1911, the Superior Court
of King County ordered as an additional
punishment to his life imprisonment sen-
tence the sterilization by vasectomy of Pet-
er Feilen, duly convicted of carnal abuse of
a female child under ten years of age. (7
Wash., 65.)
2. STATE SUPREME COURT.
September 3, 1912, the Supreme Court
of the state sustained the decision of the
Superior Court of King County, thus up-
holding the constitutionality (state) of the
sterilization statute, which is purely puni-
tive. The effect of this decision is, that in the
state of Washington vasectomy as a punish-
ment, executed in response to due process
of law, is not a cruel punishment. The con-
stitution of Washington forbids cruel pun-
ishment, but says nothing about unusual
punishment. (126 Pac. Rep. 75)
The principal documents in the case fol-
low:
(a) Brief of Appellant.
IN THE SUPREME COURT OF THE
STATE OF WASHINGTON.
The State of Washington,
Respondent,
vs.
Peter Feilen,
Appellant, j
APPEAL FROM THE SUPERIOR
COURT OF KING COUNTY.
JOHN F. MAIN, Judge.
SNo.
BRIEF OF APPELLANT.
Statement of the Case.
The appellant was charged by information
in the court below with having carnally
known and abused one Lois Cleaves, a fe-
male child of the age of 8 years on the lath
day of June, 1911. He was tried before
the Hon. John F. Main, one of the Judges
of the Superior Court of King County, sit-
ting with a jury, and a verdict of guilty as
charged was returned. Thereafter a motion
for a new trial was interposed on the stat-
utory grounds, and after argument, denied
by the court; thereupon the court sentenced
the defendant to the state penitentiary at
Walla Walla for life, and, in addition, order-
ed that an operation be there performed upon
him which would prevent future procrea-
tion. From the judgment of the court this
appeal is prosecuted.
♦ »» ********
We now pass to the consideration of the
sentence imposed; this sentence is in two
parts, one of which imposed a life term in the
state penitentiary, and the~ other a surgical
operation of some sort to prevent future
procreation. In the light of the testimony
as to what took place, the sentence of a life
term in .the state penitentiary was grossly
excessive. The child sustained neither tem-
porary or permanent injury at the hands of
the appellant; there was no laceration of her
private parts; no brutality used toward her
person generally; even the hymen, situated
barely an inch from the outer lips of the
vagina, was found intact; nothing, in fact,
shown except a lascivious fondling of a
child of tender years by the appellant.
In the case of State vs. Patchen, 37 Wash,
p. 24, the defendant was convicted of the
crime of rape upon a female child of the age
of ten years; the evidence established beyond
all question that the defendant had been
guilty of the crime charged, and established,
in addition, that the defendant had been
guilty of similar offenses towards several
other small children, playmates of the girl
named in the information. The trial court
sentenced the defendant to a term of twenty-
one years in the state penitentiary. On
appeal to this court the judgment of the trial
court was affirmed, but the court in com-
menting upon the sentence imposed, used
this language: "Complaint is made of the
severity of the sentence. The sentence seems
unduly severe, in view of the advanced age
of the appellant, and the character of the
prosecuting witness and associates as dis-
closed at the trial, but this question is not
subject to review by this court."
In the case of State vs. Van "Waters, 36
Wash. 358, the defendant was convicted of a
similar ofifense and sentenced to a term of
150
Detailed Review oe Litigation— Washington
twenty-five years in the state penitentiary;
on appeal the judgment of the trial court
was affirmed, but this court held that the
sentence imposed was excessive. We quote
the following from the opinion of the court:
"The sentence imposed by the court, while
within the limitations of the statute, seems
to us unnecessarily severe, in the light of the
evidence. If we felt it was within our rec-
ognized power we would direct a modifica-
tion of it, reducing the period to five years,
but our investigations have led us to doubt
the authority of an appellate court to reduce
or modify a sentence which is within the
discretion of the trial court to impose, and
we mention the matter here in the hope it
may aid the appellant in inducing the pardon-
ing power to exercise its clemency in his
behalf after he has served a reasonable
time.''
Under the authority of these cases we
submit that the sentence imposed upon the
appellant was grossly excessive, and should
not be .permitted to stand. We appreciate
that, in the same cases, this court has held
that the extent of the sentence is within
the discretion of the trial judge, and ordi-
narily will not be interfered with by this
court on appeal, but in the present case there
is interwoven and connected with this part
of the sentence another part which is clearly
unconstitutional and vitiates the entire sen-
tence. This brings us to a consideration of
that part of the sentence which calls for a
surgical operation upon the person of the
appellant.
In 1909 the Legislature of the State of
Washington passed what is known as the
"Criminal Code." This code was the out-
come or outgrowth of a conference between
the prosecuting attorneys from the various
counties in the state, most of whom were
new to practice, and were elected to their
official positions so that they could get suffi-
cient experience at the expense of the public
to engage in the practice of law subsequently
on their own account. When Justinian con-
ceived the idea of codifying the Roman laws
he called into conference Tribonian, the
greatest lawyer of ancient times, and com-
mitted to his hands the contemplated task.
Tribonian gathered about him the greatest
lawyers and judges of his time, and they
spent over ten years in formulating what
has since been known as the Code Justinian,
or civil code. When Napoleon conceived the
idea of revising the ancient Roman code he
placed the matter in the hands of the greatest
lawyers and jurists of France, Italy, Belgium
and Spain, and for six years they labored
upon the herculean task allotted to them be-
fore they gave to the world what has since
been known as the Code Napoleon. The
present criminal code of the State of Wash-
ington was formulated by a number of in-
experienced prosecuting attorneys in a period
of less than sixty days, and rushed through
the legislature in the closing days of its
session, without critical consideration of its
contents. Among the freak enactments in-
cluded in this code is the one involved in
the present case, and is as follows: "When-
ever any person shall be adjudged guilty of
carnal abuse of a female person under the
age of ten years, or of rape, he shall be
adjudged to be an habitual criminal, and the
court may, in addition to such other punish-
ment or confinement as may be imposed,
direct an operation to be performed upon
such person for the prevention of procre-
ation." (Laws 1909, p. 899.) This law was
enacted on the theory, evidently, that men
who commit rape, or become habitual
criminals, are physically and mentally unfit
to procreate their species, and that society
will be benefited by castrating them or other-
wise operating upon them so as to prevent
them from bringing offspring into the world.
Many criminals are possessed of bodies, both
physically and mentally, which better qualify
them for parentage than others who have
never transgressed the criminal statutes.
Some criminals are merely misdirected
geniuses, and would make much better par-
ents, so far as society at large is concerned,
than the man who passes the contribution
box at church on Sunday and talks morality
to the children at Sunday school one day
of the week, and collects interest at the rate
of five per. cent per month from his unfortu-
nate fellow man during the remainder of the
week, or who preaches temperance and
morality in public and rents his property
privately for grog shops and houses of
prostitution. It has been demonstrated by
study and observation that feeble-minded
people produce feeble-minded offspring.
Why not apply the operation of castration
or vasectomy to this class of people? Paup-
ers invariably marry among their own kind
and produce pauper children, and these in
turn do the same, arid the support of these
pauper offspring is thrown upon the public
as an additional charge. Why not castrate
the paupers, if it is a good thing? In many
parts of this country there are people who
Detaii^ed Review of Litigation — Washington
151
will not work, even when employment is
offered, but are indolent, shiftless and in-
competent; and these are permitted to marry-
without interference and produce children
of like character and tendencies. Why not
operate upon this type and so protect
society?
The writer of this brief has been unable
to find any decisions bearing upon this ques-
tion, although similar enactments have been
passed in Indiana, New Jersey and Cali-
fornia. However, with the indulgence of
the court we will refer to an article in the
March, 1912, number of Current Literature,
and briefly quote therefrom: "Few mis-
conceptions are more general, according to
the famed English student of eugenics, Sir
James Barr, than the notion that criminals
should, just because they are criminals, be
prevented from becoming parents. Never-
theless, legislation has in certain parts of
the world done the human race the injury
of sterilizing all habitual criminals. This is
to overlook the fact that there are certain
criminals, such as the burglar, who are very
clever — gifted with personal qualities of a
high order. If we are to breed men and
women for intelligence it would be a bad
thing to exclude the burglar from parent-
hood. The same may be said for other
classes of criminals — highwaymen, for
instance, and forgers. Many burglars are
misdirected geniuses. They are frequently
more honest than financiers, especially finan-
ciers connected with the promotion of com-
panies. It would be better from the stand-
point of eugenics to sterilize the financiers
than to sterilize the burglars, some of whom
would make magnificent administrators. The
fallacy underlying the notion that habitual
criminals, just because they are habitual
criminals, should be debarred from parent-
hood, rests upon an incapacity to distinguish
between qualities of advantage to the race.
Many burglars have qualities of immense
advantage to the human race — qualities that
should not be lost, although they should, of
course, be better directed."
In the issue of Law Notes for June, 1911,
there is a discussion on page 47 of the Indi-
ana Sterilization Act, and the writer takes
the position that such legislation is not only
unconstitutional but illogical and absurd.
From the article in question we quote one
brief paragraph : "Can they lawfully castrate
one whom they have adjudged to be a 'con-
firmed criminal' and beyond the probability
of improvement, instead of performing the
simple operation of vasectomy? The Indi-
ana Constitution provides that 'cruel and
unusual punishment shall not be inflicted.'
By the ancient common law of England one
who committed mayhem by castration 'was
sentenced to lose the like part.' But even
this limited employment of castration as a
punishment 'went out of use * * *
partly because, upon a repetition of the
offense, the punishment could not be re-
peated,' says Blackstone, i Black. Comm.
206. 'Any punishment, which, if ever em-
ployed at all, has become altogether obso-
lete, must certainly be looked upon as un-
usual,' said the distinguished chief justice
and author of 'Constitutional Limitations,'
Cooley Const. Lim. (6th Ed.) 403. The
common-law felony of mayhem is a very
grave statutory offense in Indiana. We have
read Chief Justice Baldwin's expressions of
opinion, as quoted in the New York Tribune
for May 14. Nevertheless, if a board of
physicians and surgeons shall contemplate
operating by castration upon criminals,
under the supposed authority of the Indiana
Act of 1907, we think that common prudence
would advise them to consult an Indiana
lawyer for confirmation of the foregoing
authorities for his opinions of their potency."
The Constitution of this state provides,
Article I, Sec. 14, that "Excessive bail shall
not be required, excessive fines imposed, or
cruel punishment inflicted." We believe that
the punishment inflicted in the present case
is such a cruel punishment as is inhibited by
that constitutional provision. Of course, it
will be argued, as it was argued before the
trial court by the attorney for the State,
that the operation contemplated is not cruel
in its nature, that all that is necessary to do
to prevent procreation is to perform the
operation of vasectomy or some equally
innocuous operation, and in the event of the
unfortunate criminal being pardoned, or later
development disclosing his innocence of the
crime for which he was convicted and sen-
tenced, the severed tube could be reunited
and nature's functions happily restored.
Frankly, we don't believe there is anything
simple or harmless about such an operation,
and certainly do not believe that after long
disuse of the normal functions of the male
necessary to procreate his species there could
be a complete restoration. Aside from this,
however, the provision of the code in ques-
tion does not necessarily contemplate any
alleged innocuous operation. It provides
merely that the court, if he thinks the de-
152
DUTAiLBD Review of Litigation— Washington
fendant is not a fit -subject for parentage,
shall "direct an operation to be performed
upon such person for the prevention of pro-
creation." The best known and most used
operation to prevent procreation, both in
ancient and modern times, has been the
operation of castration, and the trial judge,
if he desired to make assurance doubly sure,
under the provisions of this act, could order
castration in place of vasectomy, and if the
law is constitutional the poor unfortunate
defendant would be castrated. If anything
further be needed to show the cruel nature
of the punishment imposed, it may be found
in Deuteronomy, Chap. 23, Sec. 1: "He
that is wounded in the stones or hath his
private member cut oflf shall not enter into
the assembly of Jehovah."
We submit that this provision of the law
is in conflict with the constitutional provis-
ion above quoted, in that it is cruel and in-
human, and vitiates the entire judgment of
the court in the present case.
We respectfully submit that the conviction
of the defendant should be set aside and the
cause remanded to the trial court, with di-
rections to discharge the appellant from cus-
tody.
Respectfully submitted,
SIDNEY WILLIAMS, and
WILLIAM BELL,
Attorneys for Appellant.
(b) Brief of Respondent.
IN THE SUPREME COURT OF THE
STATE OF WASHINGTON.
The State of Washington,
Respondent,
vs. VNo.
Peter Feilen,
Appellant.
APPEAL FROM THE SUPERIOR
COURT OF KING COUNTY.
JOHN F. MAIN, Judge.
BRIEF Of RESPONDENT.
Statement of the Case.
This appellant was charged by informa-
tion filed in the Superior Court of King
County, with the crime of carnal knowl-
edge of one Lois Cleaves, a female child of
the age of 8 years. He was tried before the
Hon. John F. Main, sitting with a jury, and
a verdict of guilty as charged returned. A
motion for a new trial being made and
overruled, he was sentenced by the court
to life imprisonment in the state penitentiary
at Walla Walla. And pursuant to Section
2287 Rem. & Bal. Code it was the judgment
of the court that an operation be performed
upon the appellant for the prevention of
procreation.
From such judgment and sentence this
appeal is prosecuted.
Appellant in his statement of the case has
incorporated an epitomized statement of the
evidence which is not entirely accurate, but
in view of the fact that he has assigned as
error the submission of the case to the jury
which raises the question of the sufficiency
of the evidence, we will notice the evidence
under that head and controvert such state-
ments of the appellant as we deem inaccu-
rate.
»»» •»♦*****
The last three of appellant's assignments
of error concerning the sentence of the trial
court appellant groups in subdivision two,
and we will consider them as so grouped by
him.
The sections of the statute (Rem. & Bal.
Code) pursuant to which the sentence was
imposed are as follows:
Section 2436. "Every person who shall
carnally know and abuse any female child
under the age of eighteen years, not his wife,
shall be punished as follows:
(1) When such child is under the age of
ten years, by imprisonment in the state peni-
tentiary for life;
(2) When such child is ten and under
fifteen years of age, by imprisonment in the
state penitentiary for not less than five
years;
(3) When such child is fifteen and under
eighteen years of age, and of previously
chaste character, by imprisonment in the
state penitentiary for not more than ten
years, or by imprisonment in the county jail
for not more than one year."
Section 2287: "Whenever any person
shall be adjudged guilty of carnal abuse of a
female person under the age of ten years,
or of rape, or shall be adjudged to be an
habitual criminal, the court may, in addition
to such other punishment or confinement as
may be imposed, direct an operation to be
performed upon such person, for the preven-
tion of procreation."
The judgment of the court against this
appellant is as follows;
"The prosecuting attorney, with the de-
fendant Peter Feilen, and his counsel, came
Detaii^ed Review oe Litigation — Washington
153
into court on the 9th day of September,
1911, and after argument by respective
counsel, the matter of the sentence of the
defendant was taken under advisement by
the court until the 16th day of September,
1911, at which time it was continued until
the 23d day of September, 1911. All parties
being present, the defendant was duly in-
formed by the court of the nature of the
information found against him for the crime
of carnal knowledge of a child, committed
on the 12th day of July, 1911, of his arraign-
ment and plea of not guilty to the offense
charged in the information, of his trial and
the verdict of the jury on the 6th day of
September, 1911, of guilty. The defendant
was then asked if he had any legal cause to
show why judgment should not be pro-
nounced against him, to which he replied
that he had not, and no sufficient cause being
shown or appearing to the court thereby, the
court rendered its judgment that, whereas
said defendant having been duly convicted
in this court of the crime of carnal knowl-
edge of a female person under the age of
ten years, to-wit, of the age of eight years,
it is therefore ordered, adjudged and decreed
that the said defendant, Peter Feilen, is
guilty of the crime of carnal knowledge of a
female person under the age of ten years,
and that he be punished by confinement at
hard labor in the penitentiary of the State
of Washington for the term of his natural
life.
"And it is further ordered, adjudged and
decreed that an operation be performed upon
said Peter Feilen for the prevention of pro-
creation, and the warden of the penitentiary
of the State of Washington is hereby
directed to have this order carried into effect
at the said penitentiary by some qualified
and capable surgeon by the operation known
as vasectomy; said operation to be carefully
and scientifically performed.
"The said defendant is remanded to the
custody of the sheriff of King county to be
by him detained and delivered into the
custody of the proper officials for trans-
portation to said penitentiary.
"Done in open court this 30th day of
September, 1#11, as of September 23, 1911.
"JOHN F. MAIN, Judge."
It is first contended by appellant that the
sentence of a life term in the penitentiary is
grossly excessive, but we submit that any
prayer for relief in that behalf should be
addressed to the legislature of this state.
It will be noted that Section 2438 Rem. &
Bal. Code, supra, provides that when the
carnal knowledge is of a child under the
age of ten years, the punishment shall be by
imprisonment in the state penitentiary for
life. Such section leaves the trial court no
alternative but to impose sentence as directed
by the statute.
As was held in the case of People vs.
Morris, 80 Mich. 637, 8 L. R. A. 685: "It is
not the province of the court to deal with
the policy of the law as that belongs to the
legislature, which is composed of the repre-
sentatives of the people, who alone have the
right to voice the sentiments of the people
in public enactments, and when such senti-
ments are enacted into law, the only
province of the court is to determine their
validity under the Constitution."
And in State vs. Becker, 3 S. D. 29, "It
devolves upon the legislature to fix the pun-
ishment for crime, and in the exercise of
their judgment great latitude must be
allowed and courts may reasonably inter-
fere only when the punishment is so un-
reasonable or so cruel, as to meet the dis-
approval and condemnation of the conscience
and reason of men generally."
It is the duty of a state to protect the
good order, peace, and happiness of its citi-
zens by enacting such laws as will tend to
prevent practices that lead to vice and crime
and punish those who violate such laws.
The one thing that justifies punishment for
crime more than anything else is the de-
terrent effect it has upon those who, unre-
strained, would resort to violence, vice and
chicanery. The punishment of the individual,
though well deserved and justly meted out,
would be of little benefit to society were it
not for the example that it sets to those
who are not endowed with inherent
righteousness.
So pursuant to the duty of a common-
wealth to protect its citizens the legislature
is entrusted with the power and discretion
to enact such laws as are adequate, and
necessary for such purposes, and to impose
and regulate punishments, taking into con-
sideration the object they are designed to
accomplish, the degree of criminality of the
offense or the illegality or impolicy of the
act they are intended to punish or prevent.
Necessarily crimes are punished to a degree
commensurate with their gravity, and the
gravity is determined by the effect the com-
mission of this crime or that crime has upon
society as gathered from the accumulated
experience and observation of mankind.
154
Detailed Review oe Litigation — Washington
The crime of rape has for the longest
time within the memory of man been con-
sidered one of exceeding gravity. As has
been said, "Female chastity, justly recog-
nized as the foundation for the superstruc-
ture of family and state, has been hedged
by civilized nations, ancient and modern,
with but few notable exceptions, by all the
safeguards within the power of jurists to
devise, and from the earliest times the
heaviest penalties have been placed upon its
forcible violation."
Under the Mosaic law, it was punished by
death if the woman was betrothed and by a
fine of fifty shekels paid to the father, and
she was to be the wife of the ravisher all
the days of his life without the power of
divorce, if she was not betrothed. Deuter-
onomy, Chap. 33-25. The Roman law
which was even more severe visited the
oflfender with death and confiscation of
goods, and taking the chivalric view that
the man is always the responsible party,
made the penalty the same whether consent
was given or not. The Saxons held chastity
in like esteem, and punished rape with death,
as did also the old Gothic or Scandinavian
constitution. With the advent of William
the Conqueror, the penalty imposed by the
Saxons was changed to castration and loss
of eyes.
And in some of our southern states the
penalty of death of the common law is still
adhered to. So taking into consideration
the degree of criminality of such offense,
the effect of its commission upon society,
and the desire of the people for protection
from its perpetration, the enactment making
the violation of a female child under the
age of ten years punishable by life imprison-
ment is well within the discretion of the
legislature, and being so it cannot be held
that such sentence so imposed by a court
is excessive.
Nor is it within the province of this court
to interfere where the sentence imposed was
within the discretion of the trial judge.
State vs. Doug:lass, 24 Wash. Dec. 27.
State vs. Van Waters, 36 Wash. 358.
In the case of State vs. Berzman, 10 Wash.
277, a case similar to this case under con-
sideration, where complaint was made of the
severity of the sentence, it was said;
"Considering the case with a view to the
actual injury done, it must strike any one
as a severe punishment, but looking at it as
an exhibition of abandoned and wicked lust
which would not hesitate to ruin the life oi
innocent children, we are not prepared to say
that the sentence was legally excessive. If
there be anything in the theory that society
has a right to relieve itself of the presence
of dangerous criminals, to protect itself
from their further depredations, there is no
place that it can make a better beginning
than with those reckless libertines who
would corrupt and debauch its womankind
before they are old enough to think of pro-
tecting themselves."
The cases cited by appellant, State vs. Van
Waters, 36 Wash. 358, and State vs. Patchen,
37 Wash. 84, while holding that this court
has no power to interfere with the sentence
imposed intimate that the sentence in those
cases might seem excessive, but it will be
noted that the circumstances were different
in those cases, for in the Patchen case they
said: "The sentence seems unduly severe
in view of the advanced age of the appellant,
and the character of the prosecuting witness
and her associates" as disclosed at the trial.
And in the Van Waters case they said, in
substance, that the sentence seemed severe
in the light of the evidence. It is therefore
probable that there was some such circum-
stance in the Patchen case.
Nor could the sentence be held to be
cruel. "The word 'cruel' when considered
in relation to the time when it found place
in the Bill of Rights meant, not a fine or
imprisonment or both, but such as that
inflicted at the whipping post, in the pillory,
burning at the stake, breaking on the wheel
and the like. The word, according to
modern interpretation, does not affect legis-
lation providing imprisonment for life, or
for years or the death penalty by hanging
or electrocution, and if it did, the laws for
the punishment of crime would give no se-
curity to the citizen.''
Hobbs vs. State, 133 Ind. 404, 408.
"And it may be stated that in cases in-
volving such grave offenses as rape, impris-
onment in the penitentiary has been virtually
upheld even though such sentence may
amount to the maximum of a Itgal penalty."
State vs. Hilsabeck, 132 Mo. 348.
"The punishment of imprisonment for life
under Statute 1893, Chapter 466, for criminal
intimacy with a female child under the age
of sixteen years, is not in violation of the
constitutional provision against cruel or un-
usual punishments."
Detaii^bd Review of Lttigation — Washington
155
Commonwealth vs. Murphey, 165 Mass. 66.
It is further contended by the appellant
that that part of the judgment which orders
a surgical operation known as vasectomy
to be performed upon the person of appel-
lant is unconstitutional and that it therefore
vitiates the entire sentence.
We cannot agree with this contention.
Were we to contend that such aforesaid
part of the sentence was unconstitutional
and void, it is entirely separable from the
other part of the sentence, and its vitiation
would therefore have no effect upon the re-
maining part.
"The weight of the authority sustains the
proposition that where the court imposes
a punishment in excess of its power such
sentence is valid to the extent that the
court had power to impose it, although void
as to the excess, where such erroneous sen-
tence is severable into parts."
12 Cyc. 783 and cases cited.
We submit however that the sentence is
in no respect erroneous or void.
"The power over the whole subject of
punishment for crime is vested in the leg-
islature, and the only limitation upon its
exercise is the inhibition against the inflic-
tion of cruel and unusual punishments which
are held to mean those of a barbarous
character and unknown to the common law,
the first object of punishment being the pro-
tection of society, the reformation of pris-
oners being only subsidiary and incidental
to it."
State vs. McCauley, 15 Cal. 439-455.
In the exercise of this power, with the dis-
tinct view to protecting society, the legis-
lature passed Section 3387 Rem. & Bal. Code,
supra.
'From an examination of said section, it
will be noted that it is the inherent quality
of the individual, the congenital defect that
scientific observation has determined may
be transmitted to his offspring, that said
law is aimed to correct. Its application to
habitual criminals is indicative of such inten-
tion.
The object of such law may properly be
said to be twofold. It can be recognized
that such a law would have little effect as a
deterrent upon the class of habitual criminals
and sexual perverts that it is aimed primarily
to reach, for with such class the ability to
restrain their criminal tendency is either
absent or inert. Its object, therefore, with
regard to such class is to prevent the per-
petuation of their species. But the sexual
crime is not infrequently committed by those
whose vicious tendency is under restraint
only in proportion to their fear of punish-
ment.
The object of the law in regard to this
class is to make the punishment of such a
nature as to accomplish the maximum effect
as a deterrent, and to give the maximum
protection to existing society.
The legislature 'being limited in the exer-
cise of its power to prescribe punishment for
crime only by the constitutional inhibition
against cruel punishment, does the section
herein above quoted come within such pro-
hibition?
The word cruel as used in this respect has
been judicially defined in numerous decisions
as follows:
"The word 'cruel' as used in a mandatory
article of the constitution was intended to
prohibit a resort to the process of torture,
resorted to for so many centuries, as a means
of extorting confessions from suspected
criminals, under the sanction of the civil law,
but was never designed to abridge or limit
the selection by the law making power of
such kind of punishment as was deemed most
effective in the punishment and suppression
of crime."
Garcia vs. Territory, 1 N. W. 415-418.
"The interdict of the constitution against
the infliction of cruel and unusual punish-
ments applies to such punishments as amount
to torture, or such as would shock the mind
of every man possessed of common feeling,
such as drawing and quartering the culprit,
burning him at the stake, cutting off his nose,
arms, or limbs, starving him to death, or
such as was inflicted by the act of ■ the
English parliament in the 33d year of the
reign of Henry VIII whereby the prisoner
was ordered to be thrown into boiling water
and boiled to death for the offense of poison-
ing."
State vs. Williams, 77 Mo. 310.
In Whitten vs. State, 47 Ga. 297, it was
said that "the clause of the Georgia consti-
tution which declares that cruel and unusual
punishments shall not be inflicted, was in-
tended to prohibit the barbarities of quar-
tering, hanging in chains and such punish-
ments."
"Cruel and unusual punishment means
some cruel and degrading punishment not
156
Dbtailbd Review oif Litigation — Washington
known to the common law or a punishment
so disproportionate to the offense as to
shock the sense of the community.''
In Re Bayard, 35 Hun. 546.
"Whatever is greater than has ever been
described or known or inflicted must be
cruel and unusual punishment."
State vs. Dower, 78 N. C. 423-436.
• "Const. Art. 6, Section 33, in prohibiting
the inflicting of cruel and unusual punish-
ments, meant those which are so excessive
or so cruel as to meet the disapproval or
condemnation of the conscience and reason
of men generally."
State vs. Becker, 51 N. W. 1018; 3 S. D. 29.
Appellant has argued to some length upon
the point that if the court could order the
operation of vasectomy, it could as well
order full castration of the defendant, in
view of the fact that the statute provides
for an operation to prevent procreation. But
even though such contention may be well
founded, it cannot be said that such enact-
ment comes within the prohibition of the
constitution. For it cannot be said that the
operation of castration performed with the
skill known to surgical science in this
modern age would be cruel. But would not
the statute be construed, to mean that such
operation for the prevention of procreation
be the mildesf one known to surgical
science, and the one that would cause the
minimum of suffering or inconvenience to
the subject.
It is a general rule of statutory construc-
tion that where a statute is susceptible of
two constructions one of which would be
constitutional, courts will adopt that con-
struction which is consistent with the con-
stitutionality of the statute.
"The legal presumption is that -the legis-
lature intends nothing unconstitutional, and
when an act is susceptible of two construc-
tions that one must be adopted which is
constitutional."
French vs. Teschermaker, 84 Cal. 518.
It might, with equal logic, be argued that
Sec. 140, Chapter 349, Laws 1909, is uncon-
stitutional because the penalty of "death"
therein provided might perchance be in-
flicted by drawing and quartering or other
torture. Yet if the court directed hanging
thereunder it would hardly be contended
that the judgment was void because it
might have directed death by torture, but
did not.
And pursuant to the spirit of the statute,
the court in this case ordered that the oper-
ation known as vasectomy be performed.
The operation of vasectomy has long been
in use as a substitute for castration in
prostatic diseases, but so far as we have been
able to ascertain was first made use of in
penal institutions in Indiana by Dr. Sharpe.
We quote from Vol. II of page 283, Penal
and Reformatory Institutions, prepared for
the Eighth International Prison Congress,
in relation to such operation and its use in
connection with criminals generally, as
follows:
"Since October, 1899, I (Dr. Sharpe) have
been performing an operation known as
vasectomy, which consists of ligating and
resecting a small portion of the vas deferens.
This operation is indeed very simple and
easy to perform. I do it without adminis-
tering an anesthetic either general or local.
It requires about three minutes' time to per-
form the operation, and the subject returns
to his work immediately, suffering no incon-
venience, and is in no way impaired for the
pursuit of life, liberty and happiness, but is
effectively sterilized. I have been doing
this operation for over nine years. I have
456 cases that have afforded splendid oppor-
tunity for post operative observation, and
I have never seen any unfavorable symptom.
There is no atrophy of the testicle, there is
no cystic degeneration following, but on the
contrary, the patient becomes of a more
sunny disposition, brighter of intellect,
ceases excess masturbation, and advises his
fellows to submit to the operation for their
own good. And here is where this method
of preventing procreation is so infinitely
superior to all others proposed — that it is
endorsed by the subjected persons. All the
other methods proposed place restrictions,
and therefore punishment, upon the subject;
this method absolutely does not. There is
no expense to the state, no sorrow or shame
to the friends of the individual as there is
bound to be in carrying out the segregation
idea.
"There is a law providing for the steriliza-
tion of defectives in effect in Indiana, and
it is being carried out in the Indiana Re-
formatory. I regret very much that it is
not being followed up in the other institu-
tions of the state, but there is no doubt that
it will come in a very short time.
"After observing nearly five hundred
males, in whom I had severed the vas
Detaii^Ed Review oe Litigation — Washington
157
deferens, I am prepared to state that there
is not only a diminution of the muscular and
nervous fatigue resulting from muscular
exertion, but also a lessening of fatigue sen-
sation and a decided increase of energy and
well being. I have observed splendid re-
sults in cases of neurasthenia.
"If my information is correct there have
been over 800 persons subjected to this
operation, 200 of this number at their own
request, and the results in all cases are said
to have been good. As a result of Dr.
Sharpe's experimental operations the legis-
lature of Indiana, in March, 1909, passed a
bill, the text of which is as follows, giving
legal status to the operation:
" 'Preamble — ^Whereas, heredity plays a
most important part in the transmission of
crime, idiocy and imbecility,
" 'Therefore, be it enacted by the General
Assembly of the State of Indiana, that on
and after the passage of this act it shall be
compulsory for each and every institution in
the state entrusted with the care of con-
firmed criminals, idiots, rapists and imbeciles,
to appoint upon its staff, in addition to the
regular institutional physicians, two skilled
surgeons of recognized ability, whose duty
it shall be, in conjunction with the chief
physician of the institution, to examine the
mental and physical condition of such in-
mates as are recommended by the institu-
tional physician, and board of managers. If,
in the judgment of the committee of experts,
and the board of managers, procreation is
inadvisable and there is no probability of
improvement of the mental condition of the
inmate, it shall be lawful for the surgeons to
perform such operation for the prevention
of procreation as shall be decided safest and
most eflfective.. But this operation shall not
be performed except in cases that have been
pronounced unimprovable.'
"The State of Oregon in 1909 enacted a
similar law, and California and Connecticut
have also passed laws to this effect. In the
early part of 1909 the General Assembly of
the State of Illinois was asked to pass a bill
legalizing the sterilization of criminals of
certain types, and although the bill was
endorsed by the Chicago Medical Society,
the Physicians' club, Chicago, and the South
Side Medical Society, it failed to become a
law. This subject has also been agitated in
other states, and has been a topic of dis-
cussion in many organizations interested in
criminological and medical matters.
"Penal and Reformatory Institutions, Vol.
2, prepared for the Eighth International
Prison Congress, p. 283. Russell Sage
Foundation.
"It will be seen by the work already done,
and the number of states that have passed
the law legalizing the sterilization of crimi-
nals that it has passed beyond the specula-
tive and theoretical stage and has become an
Important feature in modern criminology."
"The advocates of the sterilization of
criminals after the manrier indicated justify
the operation and assert the necessity as
follows:
(1) "The fact of the great number of
public charges recruited from the defective
classes.
(2) "That defects physical and mental
are transmitted to the offspring.
(3) "That, if a defective marries a de-
fective, the children will inherit the stigmata
of both parents, and be of a more defective
type still. The natural tendency is for the
abnormal to mate with the abnormal, conse-
quently defectives are rapidly increasing in
numbers as well as becoming more pro-
nounced in type.
(4) "That a large number of this class fail
to respond to moral or intellectual influences,
are lacking in self-restraint and inhibitory
power, and while they may have full knowl-
edge of the nature of an offense and compre-
hend that it is morally wrong, still have not
the will power to resist the impulse to
commit the act.
(5) "That this class of persons is prolific,
as they know no law of self-restraint, and
refuse to take into consideration their
ability to care for their offspring. It is also
claimed that these ranks are recruited from
those suffering from nervous, mental or
physical disease, included in this class the
children of syphilitics and of victims of alco-
holic and drug habits or immoral excesses.
(6) "That the restriction of propagation
is necessary for the relief of this condition.
It is observed that the moral force of an
educated public opinion or law, opposed to
the marriage of defectives, cannot prevent
the propagation of defective offspring, for
while there might be fewer marriages of this
type, seiual intercourse would not be dis-
continued, the procreation would not be
prevented to any appreciable degree, and off-
spring would be illegitimate as well as de-
fective. Laws have been made in various
states to restrict the marriage of defectives.
158
Detailed Review of Litigation^Washington
In Minnesota no woman under the age of
forty-five years or a man of any age, except
he marry a woman over forty-five years of
age, either of whom is epileptic, imbecile,
feeble-minded or afflicted with insanity, may
intermarry or marry any other person.
Michigan, Delaware, Connecticut, Indiana,
New Jersey and North Dakota have also
passed such laws, but they have not proved
satisfactory or effective, and do not furnish
the remedy for the evil.
(7) "That the -absolute segregation in
colonies and industrial refuges of so great
a number of existing defectives would neces-
sitate the expenditure of enormous sums of
money."
Mr. Henry M. Boies, in his book, Prison-
ers and Paupers, gave voice to much the
same line of reasoning in support of castra-
tion for defectives, which applies equally to
vasectomy. We quote from Mr. Boies as
follows:
"By carefully providing for its degenerates
and abnormals in comfortable prisons,
asylums and almshouses, giving them the
advantage of the highest knowledge and
science of living, society unwittingly aggra-
vates the evil it seeks to alleviate. It main-
tains alive those who would perish without
its aid. It permits their reproduction and
multiplication. It fosters with more atten-
tion than it gives to better types, the estab-
lishment and increase of an abnormal and
defective class. It not only perpetuates by
care, but encourages by permitting unre-
stricted 'breeding in' among them the un-
natural spread and growth of a social
gangrene of fatal tendencies. It is assuming
alarming and oppressive proportions which
begin to be felt in the whole social organi-
zation. In terror our advancing civilization
begins to inquire if there be no way of
Counter action consistent with its highest
benevolence, by which the abnormality of
abnormalism may be avoided, criminality
and pauperism restored to natural propor-
tions, or to that ratio of increase which may
be the inevitable result of ignorance and
excess in living.
"The abnormal does not want children,
has no aflfection for them, and gets rid of
them as soon as possible if they come. If
this were not so, their offspring, being
abnormal, weak, sickly, diseased, deformed,
idiotic, insane or criminal, due to a burden-
some and suffering existence or an early
death, are a curse rather than a comfort
to their parents; so that in no sense could
the deprivation of these organs inflict injury
or damage to criminal or pauper. On the
contrary, they would be enabled thereby
to enjoy many comforts and privileges and
be relieved from many restraints at present
necessarily imposed upon them.
"The remedy we suggest would certainly
be effectual, and of immeasurable benefit to
the human race, the exercise of an inherent
right which really injures none, and more-
over, it appears to have become an impera-
tive duty which society owes to its own
preservation, which may not be neglected
without actual sin.
"Society arrests and confines the leper,
the victim of smallpox, yellow fever, cholera,
or typhoid, and treats them according to its
own will, with or against their consent. It
does not- hesitate to remove a gangrened
limb, a diseased organ from a person if it be
necessary; it shuts up the insane, the imbe-
cile, the criminal for public protection, it
inflicts punishments of various degrees, com-
pels men to labor without pay, for its good,
in durance, even deprives them of life if it
pleases; assumes arbitrary control of life,
liberty and happiness of an individual, if it
considers it necessary for the public wel-
fare; and no reasonable being questions its
right or duty to do these things. At the
same time it allows its deformed and dis-
eased in mind and body and soul to dissemi-
nate social leprosy and cancer with impunity,
while the skill of its surgeons could prevent
the infection by an operation almost as
simple as vaccination. It seems inexplicable
that the remedy should have been so long
delayed."
From the foregoing it seems certain that
the operation as ordered, could in no way
be held to be cruel. Nor according to the
definitions hereinbefore set out, could such
operation be said to be such as would shock
the mind of every man possessed of common
feeling or such as would amount to torture.
More truly could it be said that such punish-
ment was to some extent commensurate with
the gravity of an offense which would only
be committed, by one who had sunk to the
lowest degeneracy, and whose abandoned
and wicked lust amounts to inherent de-
pravity.
It is of the utmost importance to the con-
tinued integrity of society that the possi-
bility of commission of crimes of this nature
be as nearly eliminated as possible, and such
remedies as seem most effective for that
purpose should be adopted. As has been
Detailed Review oe Litigation — Washington
159
stated hereinbefore, the greatest good re-
sulting from punishment for crime is the
deterrent effect it has upon the commission
thereof.
Reformation of the individual is humane,
and a subject for intelligent cultivation, but
absolutely undesirable and poor sociological
economy if at the expense of the rights of
organized society.
Rape was clearly recognized as a crime
most dangerous to society, and its commis-
sion was drastically punished as has already
been referred to, yet legislation in this con-
nection has at all times kept pace with
advancing civilization. Experiments have
been tried upon the theory that punishment
for such offense was more severe than neces-
sary with the invariable result that a lessen-
ing of the penalty caused an increase in the
crime.
Quoting again from Witthaus and Becker,
Medical Jurisprudence, Vol, II, page 660, it
is said:
"With the advent of William the Con-
queror, the penalty imposed by the Saxons
was changed to castration and loss of eyes
(Saxon penalty was death). In the 3d
Edward I this was judged too severe; rape
became a trespass only, punishable by two
years' imprisonment, but the prevalence of
the offense made such rapid strides that in
the 13th Edward I it was again made a
felony, and has so continued in that country,
and this. During the reign of Victoria by
the 4th and 5th Victoria, c. 56, section 3,
imprisonment or penal servitude for a term
of years has been substituted for the pre-
vailing death penalty, with a resultant in-
crease in the crime from fifty to ninety per
cent over statistics for preceding years in
four years."
Such punishment as has been devised has
not eliminated entirely the crime of rape,
nor will it ever be totally eliminated. But
society is entitled to such protection from
this class of criminals as the legislature can
give, and the discretion of the legislature is
practically unlimited in determining the
adequacy of the punishment for crime. They
are presumed to know the popular sentiment
and to express it by their enactments. We
assume that they have done so by the
statute, and we submit that such statute
measured by the humane standard of modern
civilization, by the judicial definitions here-
tofore set out, and by the object that it
seeks to accomplish does not come within
the constitutional prohibition sought to be
invoked by the appellant.
And as to said statute prescribing punish-
ment which might be said to be unusual, we
submit that our constitution makes no prohi-
bition against unusual punishment and appel-
lant's citation from Cooley's Constitutional
Limitations is therefore not applicable.
See Art I, Sec. 14, Constitution State of
Washington, as follows:
"Excessive bail shall not be required, ex-
cessive fines imposed, nor cruel punishment
inflicted."
For the foregoing reasons we respectfully
submit that the judgment is right and just,
and should be affirmed.
Respectfully submitted,
JOHN F. MURPHY,
HUGH M. CALDWELL,
H. B. BUTLER,
Attorneys for Respondent.
. c. Decision of the State Supreme Court.
(No. 70 Wash.; 126 Pacific Rep. 75.)
THE STATE OF WASHINGTON, Re-
spondent V. PETER FEILEN, Appellant.i
Rape — Evidence: Sufficiency.
Same — Evidence: Corroboration.
Criminal Law — Appeal; Review; Verdict;
Rape; Sentence and Punishment.
Criminal Law — Cruel or Unusual Punish-
ment— 'Constitutional Law.
Appeal from a judgment of the Superior
Court of King County, Main. J., entered
September 30, 1911, upon a trial and con-
viction of rape. Affirmed.
Sidney J. Williams and William R. Bell,
for appellant.
John F. Murphy, Hugh M. Caldwell, and
H. B. Butler, for respondent.
CROW, J. — The defendant was convicted
of the crime of statutory rape upon the
person of a female under the age of ten
years, and was sentenced to imprisonment
for life in the state penitentiary. The final
judgment and sentence from which he has
appealed further ordered, adjudged and de-
creed that:
"An operation be performed upon said
Peter Feilen for the prevention of procre-
ation, and the warden of the penitentiary of
the state of Washington is hereby directed
to have this order carried into effect at the
said penitentiary by some qualified and
capable surgeon by the operation known as
vasectomy; said operation to be carefully
and scientifically performed."
160
Detailed Review oe Litigation — Washington
By his first assignment, appellant contends
that the trial judge erred in submitting the
case to the jury, for the reasons (l) that no
degree of penetration was shown, and (2)
that the testimony of his victim, the prose-
cuting witness, was not corroborated by
such other evidence as tended to convict him
of the crime charged. We find no merit
in these contentions. The evidence will not
be discussed or stated in this opinion, as no
good purpose could be thereby served. We
are convinced that, under the rule an-
nounced in State vs. Kincaid, 27 Wash. Dec.
114, 124 Pac. 684, the evider^ce was sufficient
to comply with the requirements of Rem.
and Bal. Code, 2437. We are also satisfied
that the evidence afforded that degree and
character of corroboration required by 3155,
Rem. and Bal., and from all of the evidence
we conclude that the only verdict that should
have been returned was the one that the jury
did return. The case was for the jury, and
their verdict will not be disturbed.
Appellant was prosecuted under Rem. and
Bal. Code, 2436, and the penalty of life
imprisonment was properly imposed. Rem.
and Bal. Code, 2287, provides that:
"Whenever any person shall be adjudged
guilty of carnal abuse of a female person
under the age of ten years, or of rape, or
shall be adjudged to be' an habitual criminal,
the court may, in addition to such other
punishment or confinement as may be im-
posed, direct an operation to be performed
upon such person for the prevention of pro-
creation."
It was under the authority of this section
that the trial judge ordered the operation of
vasectomy, and appellant, by his remaining
assignments, contends that it is unconstitu-
tional in that an operation for the prevention
of procreation is a cruel punishment pro-
hibited by Art. I, Sec. 14 of the state consti-
tution, which directs that "excessive bail
shall not be required, excessive fines imposed,
nor cruel punishment inflicted." As the
statute does not prescribe any particular
operation for the prevention of procreation,
the trial judge ordered that the operation
known as vasectomy be carefully and skill-
fully performed. The question then pre-
sented for our consideration is whether the
operation of vasectomy, carefully and skill-
fully performed, must be judicially declared
a cruel punishment forbidden by the consti-
tution. No showing has been made to the
effect that it will in fact subject appellant to
any marked degree of physical torture, suf-
fering or pain. That question was doubtless
considered and passed upon by the legisla-
ture when it enacted the statute. Appellant
further contends that the imposition of the
alleged cruel punishment as a part of the
sentence necessitates a reversal of the judg-
ment. This would not be true, even though
we were to hold the operation to be an
infliction of cruel punishment, as the judg-
ment of conviction would have to be affirmed
with directions to enforce the penalty of life
imprisonment. When a sentence is legal in
one part and illegal in another, it is not open
to controversy that the illegal, if separable,
may be disregarded and the legal enforced.
United States vs. Pridgeon, 153 U. S. 48;
State vs. Williams, 77 Mo. 310-313.
The crime of which appellant has been
convicted is brutal, heinous and revolting,
and one for which, if the legislature so de-
termined, the death penalty might be inflicted
without infringement of any constitutional
inhibition. It is a crime for which, in some
jurisdictions, the death penalty has been
imposed; 33 Cyc. 1518. If for such a crime
death would not be held a cruel punishment,
then certainly any penalty less than death,
devoid of physical torture, might also be
inflicted. In the matter of penalties for
criminal offenses, the rule is that the discre-
tion of the legislature will not be disturbed
by the Courts except in extreme cases.
"It would be an interference with matters
left by the constitution to the legislative
department of the government, for us to
undertake to weigh the propriety of this or
that penalty fixed by the legislature for
specific offenses. So long as they do not
provide cruel and unusual punishments, such
as disgraced the civilization of former ages,
and make one shudder with horror to read
of them, as drawing, quartering, burning,
etc., the constitution does not put any limit
upon legislative discretion." Whitten vs.
State, 47 Ga. 297.
On the theory that modern scientific in-
vestigation shows that idiocy, insanity, imbe-
cility, and criminality are congenital and
hereditary, the legislatures of California,
Connecticut, Indiana, Iowa, New York, New
Jersey and perhaps other states, in the exer-
cise of the police power, have enacted laws
providing for the sterilization of idiots,
insane, imbeciles, and habitual criminals. In
the enforcement of these statutes vasectomy
seems to be a common operation. Dr. Clark
Bell, in an article on hereditary criminality
and the asexualization of criminals, found at
DejtailEd Review of Litigation — Washington
161
page 134, Vol. 27, Medico-Legal Journal,
quotes with approval the following language
from an article contributed to Pearson's
Magazine for November, 1909, by Warren
W. Foster, senior judge of the Court of
General Sessions of the Peace of' the County
of New York:
"Vasectomy is known to the medical pro-
fession as 'an office operation' painlessly per-
formed in a few minutes, under an anaesthetic
(cocaine) through a skin cut half an inch
long, and entailing no wound infection, no
confinement to bed. 'It, is less serious than
the extraction of a tooth,' to quote from Dr.
William D. Belfield, of Chicago, one of the
pioneers in the movement for the steriliza-
tion of criminals by vasectomy, an opinion
that finds ample corroboration among practi-
tioners. * * * There appears to be a won-
derful unanimity of favoring the prevention
of their future propagation. The Journal of
American Medical Association recommends
it, as does the Chicago Physicians' Club, the
Southern District Medical Society, and the
Chicago Society of Social Hygiene. The
Chicago Evening Post, speaking of the
Indiana law, says that it is one of the most*
important reforms before the people, that
'rarely has a big thing come with so little
fanfare of trumpets.' The Chicago Tribune
says that 'the sterilization of defectives and
habitual criminals is a measure of social
economy.' The sterilization of convicts by
vasectomy was actually performed for the
first time in this country, so far as is known,
in October, 1899, by Dr. H. C. Sharp, of
Indianapolis, then physician to the Indiana
State Reformatory at Jeffersonville, though
the value of the operation for healing pur-
poses had long been known. He continued
to perform this operation with the consent
qf the convict (not by legislative authority)
fqr some years. Influential physicians heard
of his work, and were so favorably impressed
by it that they endorsed the movement,
which resulted in the passage of the law upon
the Indiana statute books. Dr. Sharp has
this to say of this method of relief to so-
ciety: 'Vasectomy consists of ligating and
resecting a small portion of the vas deferens.
This operation is indeed very simple and
easy to perform; I do it without administer-
ing an anaesthetic, either general or local.
It requires about three minutes' time to per-
form the operation and the subject returns
to his work immediately, suffers no incon-
venience, and is in no way impaired for his
pursuit of life, liberty, and happiness, but is
effectively sterilized.' "
Must the operation of vasectomy, thus
approved by eminent scientific and legal
writers, be necessarily held a cruel punish-
ment under our constitutional restriction
when applied to one guilty of the crime of
which appellant has been convicted? Cruel
punishments, in contemplation of such con-
stitutional restriction, have been repeatedly
discussed and defined, although we have not
been cited to, nor have we been able to find,
any case in which the operation of vasectomy
has been discussed. In State vs. Woodward,
68 W. Va. 66, 69 S. E. 385, a recent and
well-considered case which may be consulted
with much profit, Brannon, Justice, said:
"The legislature is clothed with power
well nigh unlimited to define crimes and fix
their punishments. So its enactments do not
deprive of life, liberty or property without
due process of law and the judgment of a
man's peers, its will is absolute. It can take
life, it can take liberty, it can take property,
for crime. 'The legislatures of the different
states have the inherent power to prohibit
and punish any act as a crime, provided they
do not violate the restrictions of the state
and federal constitutions; and the courts
cannot look further into the propriety of a
penal statute than to ascertain whether the
legislature had the power to enact it;' 13
Cyc. 136. 'The power of the legislature to
impose fines and penalties for a violation of
its statutory requirements is coeval with
government.' Mo. P. R. Co. v. Humes, 115
U. S. 513. The legislature is ordinarily the
judge of the expediency of creating new
crimes, and of prescribing penalties, whether
light or severe. Commonwealth vs. Murphy,
165 Mass. 66; Southern Express Co. vs. Com-
monwealth, 93 Va. 66. For such a funda-
mental proposition I need cite no further
authority. * * * What is meant by the pro-
vision against cruel and unusual punishment?
It is hard to say definitely. Here is some-
thing prohibited, and in order to say what
this is we must revert to the past to ascertain
what is the evil to be remedied. Within the
pale of due process the legislature has power
to define crimes and fix punishments, great
though they may be, limited only by the
provision that they shall not be cruel or
unusual or disproportionate to the character
of the offense. Going back to ascertain
what was intended by this constitutional
provision the history of the law tells us of
162
DETAILED Review of Litigation — ^Washington
the terrible punishment visited by the ancient
law upon convict criminals. In our days of
advanced Christianity and civilization this
review is most interesting, yet shocking and
heartrending."
The learned jurist then proceeds with the
narration of the cruel punishments men-
tioned in 4 Blackstone, at pages 92, 327, and
377, and after citing and discussing the
English Bill of Rights; Whitten vs. State,
47 Ga. 301; Aldrige Case, 2 Va. Cases, 447;
Wyatt's Case, 6 Rand 694; In re Kenunler,
136 U. S. 436, 446; Wilkerson vs. Utah, 99
U. S. 130, 135; Cooley, Const. Lim. (4th ed.),
408; Wharton, Crim. Law (7th Ed.), 3405;
Hobbs vs. State, 133 Ind. 404, 32 N. E. 1019,
18 L. R. A. 774; State vs. Williams, 77 Mo.
310; Weems vs. United States, 217 U. S. 349;
O'Neil vs. Vermont, 144 U. S. 323, and other
cases, says :
"In short, the text writers and cases say
that the clause is aimed at those ancient
punishments, those horrible, inhuman, barba-
rous inflictions."
In re O'Shea, 11 Cal. App. 568, 105 Pac.
777, the California Court of Appeals for the
First district, said:
"Cruel and unusual punishments are pun-
ishments of a barbarous character and un-
known to the common law. The word,
when it first found place in the Bill of Rights,
meant not a fine or imprisonment, or both,
but such punishment as that inflicted by the
whipping post, the pillory, burning at the
stake, breaking on the wheel, and the like;
or quartering the culprit, cutting off his
nose, ears or limbs, or strangling him to
death. It was such severe, cruel, and un-
usual punishments as disgraced the civiliza-
tion of former ages, and made one shudder
with horror to read of them. Cooley on
Constitutional Limitations (7th ed.), p. 471
et seq. State vs. McCauley, 15 Cal. 429; Whit-
ten vs. State, 133 Ind. 404, 32 N. E. 1019;
State vs. Williams, 77 Mo. 310. The legisla-
ture is ordinarily the -judge of the expediency
of creating new crimes, and prescribing the
punishment, whether light or severe. Com-
monwealth vs. Murphy, 165 Mass. 66, 42
N. E. 504, 52 Am. St. Rep. 496, 30 L. R. A.
734; Southern Express Co. vs. Com., 92 Va.
59, 22 S. E. 809, 41 L. R. A. 436."
Guided by the rule that, in the matter, of
penalties for criminal offenses, the courts
will not disturb the discretion of the legisla-
ture save in extreme cases, we cannot hold
that vasectomy is such a cruel punishment
as cannot be inflicted upon appellant for the
horrible crime of which he has been con-
victed.
The judgment is affirmed.
PARKER, CHADWICK, and GOSE, JJ.
concur.
CHAPTER VII. (Continued)
PART II. NEW JERSEY.
1. Board of Examiners
a. Order for Sterilization 164
2. State Supreme Court
a. Writ of Certiorari 165
b. On Certiorari— Reasons 165
c. Brief of Appellant 166
d. Brief of Defendants 168
e. Brief by Elmore T. Elyer, amicus curiae 172
f . Decision of Supreme Court 174
164
DutailUd RuviEw of Litigation — New Jersey
II.— NEW JERSEY. (Chapter 190, April
21, 1911.)
The New Jersey law makes it the duty
of the Board of Examiners "to examine into
the mental and physical condition of the
feeble-minded, epileptic, certain criminals
and other defective inmates confined in the
several reformatories, charitable and penal
institutions in the counties and state. • * •
Criminals who come within the operation of
this law shall be those who have been con-
victed of the crime of rape, or of such suc-
cession of offenses against the criminal law
as in the opinion of this Board of Examiners
shall be deemed to be sufficient evidence of
confirmed criminal tendencies." The law
then provides that "the superintendent or
other administrative officer of any institution
in which inmates are or may be confined, or
upon its own motion the said Board of
Examiners may call a meeting to take evi-
dence and examine into the mental and
physical condition of such inmates confined
as aforesaid." If this Board of Examiners
and the chief physician of an institution
unanimously find that procreation is inadvis-
able "it shall be lawful to perform such
operation for the prevention of procreation"
as may be deemed advisable. But before an
order for sterilization may become effect-
ive "a judge of the Court of Common Pleas
of the county in which said person is con-
fined" must pass upon the case.
It is clear that in New Jersey, while the
motive of the statute is not punitive in any
sense, and is purely for the protection of
society against the procreation of defectives,
sterilization is considered of sufficient conse-
quence in relation to a possible invasion of
personal rights that a court of law must
pass on each case.
1. The nomination by the Board of
Examiners May 31, 1912, for the steriliza-
tion of Alice Smith, an inmate of the
Village for Epileptics at Skillman, gave rise
to a test of the constitutionality of the
statute.
1. BEFORE THE BOARD OF EXAM-
INERS OF FEEBLE-MINDED (IN-
CLUDING IDIOTS, IMBECILES
AND MORONS), EPILEPTICS,
CRIMINALS AND OTHER DE-
FECTIVES.
The principal document in the case follows:
a. Order for Sterilization of Alice Smith.
In the matter of the hearing in the case
of Alice Smith, an inmate of the New Jersey
State Village for Epileptics, held at the
Administration Building, State Village for
Epileptics, May 31, 1913.
ORDER.
The Board of Examiners of Feeble-
Minded (including Idiots, imbeciles and
Morons), Epileptics, Criminals and other
Defectives, together with David F. Weeks,
the Chief Physician of the New Jersey State
Village for Epileptics, having on the thirty-
first day of May, 1912, regularly convened
at the Administration Building at the New
Jersey State Village for Epileptics (accord-
ing to the provisions of Chapter 190, page
353, of the Laws of 1911, Statutes of the
State of New Jersey), and at that time, in
the presence of Azariah M. Beekman,
Counsel regularly appointed to represent
Alice Smith, an inmate of said Village, com-
mitted thereto on August 19, 1902, by Alfred
F. Skinner, Judge of the Court of Common
Pleas of Essex County, application for the
appointment of said counsel having been
made to and the appointment having been
made, previous to the holding of said hear-
ing, by the Judge of the Court of Common
Pleas of the County of Somerset, in which
county the institution in which the said
Alice Smith is an inmate is located, having
examined into the mental and physical
condition of the said Alice Smith, do find
and declare her to be an epileptic person
within the meaning of the said Act; and the
said Board together with the Chief Physi-
cian of said institution having unanimously
found in the case of said Alice Smith, that
procreation by her is inadvisable, and that
there is no probability that the condition of
said Alice Smith, so examined, will improve
to such an extent as to render procreation by
said Alice Smith advisable.
It is, therefore, on this the thirty-first day
of May, nineteen hundred and twelve,
ORDERED, That the operation of Sal-
pingectomy, as the most effective operation
for the prevention of procreation, be per-
formed upon the said Alice Smith in
accordance with the motion at said hearing
unanimously adopted.
JOSEPH P. BYERS,
Commissioner of Charities and Cor-
rections, Chairman.
HENRY B. COSTILL,
Surgeon and Member Board of
Examiners.
ALEX. MARCY, JR.,
Neurologist and Member Board of
Examiners.
DAVID F. WEEKS,
Chief Physician of the Institution.
Detailed Review op Litigation — New Jersey
165
2. The case was submitted to the Su-
preme Court of New Jersey on July 3, 1913,
and decided November 19, 1913. The opin-
ion of the Court was delivered by Mr. Justice
Garrison, in which he held the Act of April
21, 1911, unconstitutional because it denied
epileptics in the state institutions the pro-
tection of the laws equal to that afforded to
members of this same class of unfortunates
who are not ihstitutional charges, thus.vior
lating Section 1, Article XIV, of the Consti-
tution of the United States. Theoretically,
this Act in New Jersey is still applicable to
the "Feeble-minded (including idiots, imbe-
ciles and morons), rapists, certain criminals
and other defectives," because Section 6 of
the Act provides that: "If any provisions of
this act shall be questioned in any court, and
the provisions of this act with reference to
an\ class of persoi\s enumerated therein
shall be held to be unconstitutional and void,
such determination shall not be deemed to
invalidate the entire act, but only such pro-
visions thereoi with reference to the class in
question as are specifically under review and
particularly passed upon by the decision of
the court." (88 Atl. Rep. 968.)
The principal documents in the case
follow :
2. STATE SUPREME COURT.
a. Writ of Certiorari Served on the Attor-
ney General December 26, 1912.
NEW JERSEY SUPREME COURT.
THE STATE, AUce Smith,
Prosecutor,
vs.
Board ot Examiners of
Feeble-Minded (Including
Idiots, Imbeciles, and Mo-
rons), Epileptics, Crimi-
nals and other Defectives,
Defendants.
Writ
of
Certiorari.
WRIT OF CERTIORARI.
STATE OF NEW JERSEY; to-wit:
State of New Jersey, to Joseph P. Byers,
Henry B. Costill, Alexander Marcy, Jr.,
and David F. Weeks, acting as the "Board
of Examiners of Feeble-Minded (including
Idiots, Imbeciles and Morons), Epileptics,
Criminals and other Defectives;" by which
order it was by said board adjudged and
determined that the said Alice Smith is
an epileptic person within the meaning ot
Chapter 190, page 353 of the Laws of
1911, Statutes of the State of New Jersey;
and that procreation by her is inadvisable
and wherein it is further ordered that the
operation of Salpingectomy be performed
upon said Alice Smith in accordance with
the provisions of said act, do command
you that the said order, together with all
matters and proceedings touching the
same and had thereupon, and each of
them, you do certify and distinctly and
openh' send, together with this our writ,
to our Justice of the Supreme Court of
Judicature, at Trenton, on the thirty-first
day of December, instant, that we may
further cause to be done what of right and
according to the laws of the State should
be done.
WITNESS: Wm. S. Gummere, Chief
Justice of our Supreme Court, this the
fourteenth day of December, nineteen
hundred and twelve (1912).
JOSEPH TUMULTY,
Clerk.
A. M. BEEKMAK.
Attorney.
b. On Certiorari — Reasons.
THE STATE, Alice Smith,
Prosecutor.
vs.
Board of Examiners of
Feeble-Minded (Including
Idiots, Imbeciles, and Mo-
rons), Epileptics, Crimi-
nals and other Defectives,
Defendants.
On
Certiorari
Reasons.
ON CERTIORARI— REASONS.
The said prosecutor, by Azariah M. Beek-
man, her attorney, comes and prays that the
order made by the defendants whereby the
surgical operation of Salpingectomy is di-
rected to be performed upon the person of
the prosecutor, may be set aside and re-
versed, and for nothing holden, for the
following reasons:
1. The act of the Legislature by authority
of which the defendants acted in making said
order is unconstitutional and in derogation of
the civil rights of the prosecutor as a citizen
of the State of New Jersey and the United
States.
2. There is and was no authority or
power conferred upon the defendants by the
act of the Legislature (Chapter 190, page
353 of the laws of 1911, Statutes of the
State of New Jersey) under which said order
166
Detahbb Review of Litigation — New Jersey
can be made nor does the said act authorize
and empower the defendants or any board,
person or persons to perform the operation
of Salpingectomy upon a citizen of the
State.
3. The statute (Chapter 190, Laws 1911)
under which the said order purports to have
been made essentially provides for the cor-
poral punishment and physical injury of ^
particular class of citizens without their con-
sent and without pretense that such punish-
ment is inflicted as a penalty for any crime
or misdemeanor committed by the victim,
but solely upon the authority of a commis-
sion or board of varying complexion and of
transitory character, invested with no statu-
tory or constitutional powers to pronounce
sentence or inflict punishment.
4. The statute in question is unconstitu-
tional because it provides for cruel and un-
usual punishment without a trial by jury or
the adjudication of a court of competent
jurisdiction; and because it is in effect class
legislation and beyond a reasonable exercise
of the power of the Legislature to enact and
prescribe police regulations on the ground
of public policy.
5. The said order should be set aside and
for nothing holden because the making
thereof and the hearing and proceedings
upon which the order is founded was not in
conformity to the statutory provisions of
the act of the Legislature, known as Chapter
190, page 353 of the Laws of 1911, Statutes
of the State of New Jersey.
A. M. BEEKMAN,
Attorney of Prosecutor.
c. Brief of Azariah M. Beekman, On Behalf
of Appellant.
NEW JERSEY SUPREME COURT.
THE STATE, Alice Smith,
Prosecutor,
vs.
Board of Examiners of Feeble-
Minded (Including Idiots, Im-
beciles and Morons), Epileptics,
Criminals and Other Defec-
tives,
Defendants.,
Brief.
The chief ground relied upon in this
appeal is the unconstitutionality of the
statute upon which the entire procedure
rests. Unless this statute is a constitutional
exercise of that legislative function known
as "police power'' incident to governmental
authority there is no tenable argument to
support its legality or the legality of any act
or procedure thereunder.
DEFINITION: "Police power, in its
broadest acception, means the general power
of a government to preserve and promote
the public welfare even at the expense of
private rights.''
A. and Eng. Ency. of Law, 1st Ed., Vol
18, page 739.
It is, therefore, apparent that in the exer-
cise of this governmental function private
rights may be involved and trespassed upon
and the question as to what extent seems
unsettled and debatable.
"Many attempts have been made in this
court and elsewhere to define the police
power, but never with entire success. It is
always easier to determine whether a particu-
lar case comes within the general scope of
the power than to give an abstract definition
of the power itself which will in all respects
be accurate."
Stone vs. Mississippi, 101 U. S. Reports
814.
It is a well recognized right of the state
to confine its subjects who are suffering
' from contagious or infectious diseases, or
insanity, the public safety requiring it.
"The confinement of a violent lunatic is as
defensible as the punishment of a criminal.
The reason for both police regulations is
the cause, viz: to insure the safety of the
public."
Tiedeman's Limitations of Police Power,
page 105.
But it seems that the danger in any of
these cases must be immediate and not
contingent and remote, for the State has
no right to speculate where the liberty of an
individual is involved.
"It would be unlawful exercise of. police
power if government ofHcials should attempt
to confine one in a hospital for medical treat-
ment whose disease did not render him
dangerous to public health," • • • "The
remote or contingent danger to society from
the inheritance of disease by his children
would be no ground for interference. The
danger must be immediate."
Ibid, page 103.
"In this respect the insane asylum bears
the same relation to the public as the hos-
pital does. As long as coercion is not
employer!, there would "seem to be no limit
Detaii,ed Review of Litigation — New Jersey
167
to the power of the State to provide for
medical treatment of lunatics."
Ibid, page 105.
The title of the act in question, "AN
ACT TO AUTHORIZE AND PROVIDE
FOR THE STERILIZATION OF
FEEBLE-MINDED (INCLUDING
IDIOTS, IMBECILES AND MORONS),
EPILEPTICS, RAPISTS, CERTAIN
CRIMINALS AND OTHER DEFEC-
TIVES" (Laws of 1911, Chapter 190, page
353), clearly indicates the character of the
undertaking embraced in this statute, the
classification of the person to be effected in
all cases embraces the idea included in the
defective, the feeble-minded. Idiots and
lunatics are specifically included.
This classification alone dispenses with
the possibility of legal consent and the
general purpose of the act and the problem
with which it undertakes to deal eliminates
any idea that the subjects of its operation
have the right or power to exercise any
volition.
In order to carry out the provisions of the
act, physical violence must be inflicted
(Section 3, page 354, Laws 1911), upon the
determinatio^n and decision of a board of
examiners created to act in the premises.
In the case at bar an order has been made
(page 44, State of Case) that the operation
of salpingectomy be performed upon the
person of the prosecutrix, to-wit: The re-
moval of the fallopian tubes by excision,
involving physical pain and suffering and
permanent impairment of the sexual func-
tions of the prosecutor, who is now unmar-
ried (page 9, State of Case) has no desire
to be a mother (page 41, State of Case) and
is confined in a State institution, therefore,
in this instance the possibility of injury to
society in general is particularly remote, and
the danger, if any, is not immediate. The
facts in this case present a fair example of
the actual working — of an unusual attempt
to extend the law making power upon the
theory of police regulation in the interest
of the general public good.
Owing to the indefinite attitude of the
courts upon this important matter it seems
permissible to express personal notions upon
the feasibility of such a law and to comment
upon the social aspects of the situation pre-
sented. •
Medicine is admittedly an uncertain
science, it is to a large degree experimental,
and theoretical, for it deals with the mystery
of life, death and the infinite phenomena of
physical production and reproduction and
nothing short of infinite knowledge should
be taken as absolute authority when we
undertake to finally determine the source of
human imperfections, mental and physical.
There is and can be no guarantee that this
or that disease is incurable, and never will
be curable, or is necessarily transmittablc
from one generation to another.
There can be no definite line drawn to
mark a division line between the healthy
and the unhealthy, the normal and the
abnormal, for no human is perfect either in
mind or body. We are sick or well, sane or
insane by comparison only.
This act applies only to those confined in
institutions of the State and does not include
any of its subjects who may be similarly
afflicted who are at laige. It is, therefore,
directed at a particular class of unfortunates
who by reason of their confinement alone
are denied the usual pursuits of happiness —
and the ordinary opportunity of procreation
and sexual enjoyment. They, however, have
forfeited no constitutional right.
There is no immediate danger to society,
for owing to their present situation the possi-
bility of the social evil in mind is remote and
contingent. It seems a dangerous innovation
to give any board or constituted authority,
created by legislative enactment only, the
power to physically harm one of the State's
subjects, under less safeguard and formality
than is required to inflict a penalty upon
criminals who have violated the rules of
society and forfeited its protection.
The victims of the operation of this law
are unfortunates merely — the heirs, perhaps,
of the transgression of others. They have
not wronged society, they bear the penalties
of an effete civilization, are mentally and
physically helpless, the wards of the State.
Since science is uncertain, and the courts
are not definite, should not due regard be
paid to the spirit of the provisions of our
State Constitution and its generally accepted
intent?
Article I, Section 1. "All men are by
"nature free and independent, and have
"certain natural and unalienable rights,
"among which are those of enjoying and
"defending life and liberty; acquiring, pos-
"sessing and protecting property, and of
"pursuing and obtaining safety and happi-
"ness."
"The right to a trial by jury shall remain
inviolate, but the legislature may authorize
168
Detailed Review of Litigation — New Jersey
the triar of civil suits, when the matter in
dispute does not exceed fifty dollars, by a
jury of six men."
Paragraph 7, Article I, State Constitution.
"In all criminal prosecutions the accused .
shall have the right to a speedy and public
trial by an impartial jury.''
Paragraph 7, Article I, State Constitution.
"No person can be deprived of the right to
manage his own aflfairs or of his personal
liberty, without the intervention of a jury."
In the matter of Runey Day, 1 Stockton,
9 Equity, page 185.
The right to pursue safety and happiness
must certainly include the right of personal
security. ^
DEFINITION: "Personal security has
been defined to include security of life, limb,
body, health and reputation."
2d Ed. Am. & Eng. Ency. Law, Vol. 6,
p. 1008.
The statute in question provides no trial
by jury, but if given force and operatioii,
there would be vested in a board created by
the legislature the right to decree a physical
violence to a distinct class of persons, includ-
ing criminals who have been convicted of
rape or of a succession of offenses sufficient
to indicate confirmed criminal tendency.
The act applies only to "inmates confined
in the several reformatories, charitable and
penal institutions in the counties and State."
(Section 1, Chapter 1, Laws 1911. pagf
353.)
This may not open the statute to the
charge that it is class legislation, but the
tendency would be, on the part of those nut
confined in public institutions to avoid sub-
jecting themselves or their relatives to the
hazards of the law which does not apply
to those outside of such institutions.
To this extent the law itself would defeat
its objectl
Respectfully submitted,
AZARIAH M. BEEKMAN,
Attorney for Prosecutors.
d. Brief of Defendants.
NEW JERSEY SUPREME COURT.
THE STATE, Alice Smith,
Prosecutor,
vs.
Board of Examiners of Feeble-
Minded (Including Idiots,
Imbeciles and Morons), Epi-
leptics, Criminals and Other
Defectives, Defendants.
On
I Writ of
Certiorari
BRIEF OF NELSON B. GASKILL,
Attorney-General,
ON BEHALF OF THE DE-
FENDANTS.
The writ presents for review an order of
the State Board of Examiners of Feeble-
Minded (including Idiots, Imbeciles and
Morons), Epileptics, Criminals and Other
Defectives, which Board is constituted and
operates by virtue of the authority con-
ferred by Chapter 190, Laws of 1911,
page 353.
I.
THE STATUTE.
The essential parts of the statute are as
follows:
"An Act to authorize and provide for the
sterilization of feeble-minded (including
idiots, imbeciles and morons), epileptics,
rapists, certain criminals and other defec-
tives.
WHEREAS, Heredity plays a most im-
portant part in the transmission of feeble-
mindedness, epilepsy, criminal tendencies,
and other defects:
BE IT ENACTED by the Senate and
General Assembly of the State of New
Jersey :
1. Immediately after the passage of this
act, the Governor shall appoint by and with
the advice of the Senate, a surgeon and a
neurologist, each of recognized ability, one
for a term of three (3) years and one for
a term of five (5) years, their successors
each to be appointed for the full term of
five years, who in conjunction with the Com-
missioner of Charities and Corrections shall
be known as and is hereby created the 'Board
of Examiners of Feeble-Minded (including
idiots, imbeciles and morons), Epileptics,
Criminals and other Defectives,' whose duty
it shall be to examine into the mental and
physical condition of the feeble-minded, epi-
leptic, certain criminal and other defective
inmates confined in the several reformatories,
charitable and penal institutions in the coun-
ties and State. Any vacancy occurring in
said Board of Examiners shall be filled by
appointment of the Governor for the unex-
pired term.
3. The criminals who shall come within
the operation of this law shall be those who
have been convicted of the crime of rape, or
of such succession of oflFenses Sgainst the
criminal law as in the opinion of this Board
of Examiners shall be deemed to be sufficient
evidence of confirmed criminal tendencies.
Detailed Review of Litigation — New Jersey
169
3. Upon application of the superintendent
or other administrative officer of any institu-
tion in which such inmates are or may be
confined, or upon its own motions, the said
Board of Examiners may call a meeting to
take evidence and examine into the mental
and physical condition of such inmates con-
fined as aforesaid, and if said Board of
Examiners, in conjunction with the chief
physician of the institution, unanimously find
that procreation is inadvisable, and that there
is no probability that the condition of such
inmate so examined will improve to such an
extent as to render procreation by such in-
mate advisable, it shall be lawful to perform
such operation for the prevention of pro-
creation as shall be decided by said Board
of Examiners to be most effective, and there-
upon it shall and may be lawful for any
surgeon qualified under the laws of this
State, under the direction of the chief physi-
cian of said institution, to perform such
operation; previous to said hearing the said
board shall apply to any judge of the Court
of Common Pleas, of the county in which
said person is confined, for the assignment
of counsel to represent the person to be
examined, said counsel to act at said hearing
and in any subsequent proceedings and no
order made by said Board of Examiners
shall become effective until five days after
it shall have been filed with the clerk of the
Court of Common Pleas, of the county in
which said examination is held, and a copy
shall have been served upon the counsel
appointed to represent the person examined,
proof of service of the said copy of the
order to be filed with the clerk of the Court
of Common Pleas. All orders made under
the provisions of this act shall be subject to
review by the Supreme Court or any justice
thereof and said court may upon appeal from
any order grant a stay which shall be effec-
tive until such appeal shall have been decided.
The judge of the Court of Common Pleas
appointing any counsel under this act may
fix the compensation to be paid him and it
shall be paid as other court expenses are
now paid.
No surgeon performing an operation
under the provisions of this law shall be held
to account therefor, but the order of the
Board of Examiners shall be a full warrant
and authority therefor » * *
6. If any provisions of this act shall be
questioned in any court, and the provisions
of this act with reference to any class of
persons enumerated therein shall be held to
be unconstitutional and void, such determi-
nation shall not be deemed to invalidate the
entire act, but only such provision thereof
with reference to the class in question as are
specifically under review and particularly
passed upon by the decision of the court."
. II-
THE FACTS EXHIBITED BY THE
STATE OF THE CASE.
The prosecutor, Alice Smith, is an inmate
of the New Jersey State Village for Epilep-
tics, above the age of twenty-one years, and
was committed to the said institution by an
order made by the Judge of the Court of
Common Pleas of the County of Essex, on
August 19th, 1902, as indigent epileptic.
(State of the Case, pages 5, 6, 7, 8 and 9.)
In addition to the. stipulation of facts, and
the appearance of the record formally
adjudging the prosecutor to be an epileptic,
the certificate of original records, the history
and condition of the prosecutor are exhibited
in pages of the State of the Case, 9 to 45.
It is impossible to consider this evidence
without being led inevitably to the result
that the prosecutor is, in fact, an epileptic.
In fact, this is not denied.
The hearing, and the order of the Board
following the hearing (page 44), indicate that
the statutory procedure was properly fol-
lowed.
III.
The act in question was passed by ' the
Legislature of nineteen hundred and eleven,
and became a law, with the approval of the
Executive. The legislative policy, there-
fore, is established and declared. This policy
follows established belief upon the subject
treated, as is evidenced by the laws of other
states.
Indiana, Laws 1907, C-215;
Connecticut, Public Acts 1909, C-209;
California, Statutes 1909, C-720;
Iowa, Laws 1911, 0-129.
The underlying principle upon which such
legislation is based, and its justification, must
be found in the police power of the States.
It is to be observed that nothing in the act
now under consideration indicates that its
operation is conceived or intended to be
within that part of the police power of the
State which deals with crime by administer-
ing punishment. The act belongs rather to
the administrative, regulative phase of the
police power, intended to promote the gen-
eral welfare, not only of the presently exist-
170
De;taii<ed Review op Litigation — New Jersey
ing group of citizens, but their successors
throughout the continuation of the State as
such. The tests to be applied to this statute,
therefore, are not those by which a punitive
statute is measured.
Since the limits of the police power have
never been encompassed within a single
definition, but must be 'judged inevitably by
the circumstances of each individual case as
presented, so this case stands without abso-
lute precedent.
So far as information runs in the several
States in which similar legislation has been
passed, either the operation of the act has
received some assent from the individuals
affected, or has been put into operation
without objection or subsequent determina-
tion by the Court in a test case. For there
is no decision which counsel has been able
to find dealing directly with the questions
now presented.
The statute of the State of Washington,
which was under review in State v. Feilen,
126 Pac. Rep. 75, is a statute somewhat
similar, but in which the operations of the
statute were clearly and specifically directed
at punishment for crime, and, as has been
stated above, no such purpose can be found
in the statute now under review. The ques-
tion, therefore, of double punishment, or
cruel or unusual punishment is not involved.
The Legislature has declared the scope
of the statute as applied to certain described
classes. It seems to be settled that the
declaration of the Legislature prohibiting
certain acts of restraint of previously. exist-
ing liberties, as harmful to the public welfare,
disposes of the subject matter, as far as the
Court is concerned, with the problem of
whether the acts referred to are or are not
harmful, and, therefore, to be prohibited.
This is the burden of the decision in the
case of the State Board of Health vs. Dia-
mond Mills Paper Company, reported in 63
Eq., at p. 11. The only question, therefore,
before the Court can be, not whether the
Legislature is justified in the conclusion
which it has reached, but whether, having
reached that conclusion, it has, in enforcing
it, or in the declaration of the statute, en-
croached upon any of the rights or privi-
leges of the individual guaranteed by the
organic law, beyond the power of legislative
invasion.
It must be conceded that the growing
tendency of judicial decision is toward a
liberal interpretation of the guarantees of
personal rights, as contained in the State
and Federal Constitutions, subjecting the
rights of the individual to restriction in favor
of the general welfare.
As Mr. Justice Holmes said, in rendering
the opinion in Noble State Bank vs. Haskell,
219 U. S., p. 104:
"Many laws which it would be vain to ask
the court to overthrow could be shown,
easily enough, to transgress a scholastic
interpretation of one or another of the great
guarantees in the Bill of Rights. They more
or less limit the liberty of the individual or
they diminish property to a certain extent.
We have few scientifically certain criteria
of legislation, and as it often is diflScult to
mark the line where what is called the police
power of the State is limited by the Consti-
tution of the United States, judges should be
slow to read into the latter a nolumus
mutare as against the law-making power."
The novelty of the statutory proceeding,
and the broad scope of the statutory fore-
cast must, therefore, be dismissed, and
search made, since there is no absolute prece-
dent, for decisions which will, at least, act as
lines of direction.
It is well settled that the right of marriage
is subject to limitations by the State. It is
true that the State has never regarded the
marriage ceremony as a legal, as distin-
guished from a religious ceremony, as is the
case under the civil law, but the regulation
and the restriction of the right of marriage
has long since been established. These re-
strictions include protection to the State
against the marriage of classes of persons
distinctly upon the ground that the birth of
undesirable citizens will be detrimental to
the State welfare.
Lonas vs. State, 3 Heisk (Tenn. 287);
State vs. Gibson, 36 Ind. 389;
Gould vs. Gould, 78 Conn. 242.
The statutes of this State regulating mar-
riage, including prohibition against the mar-
riage of epileptics, have not received consid-
eration at the hands of the Court, seeming
to have been accepted without protest. It is
true that this limitation upon the right of
marriage does not include, or has not yet
included, infliction of physical injury upon
individuals for the protection of society.
Yet there are not wanting decisions which^
indicate the right of the State to compel
physical injury upon unwilling individuals
for the general protection. The discovery
of vaccination, and its successful use, led to
the adoption of compulsory vaccination laws.
Detailed Review ot Litigation — New Jersey
171
These were resisted, as infringing tho rights
of personal liberty, due process of law, etc.,
and were sustained as a valid exercise of the
police power.
Morris vs. Columbus, 102 Ga. 792; 30
S. E. Rep. 850;
Jacobson vs. Mass., 197 U. S. 11.
It results, therefore, since the State may
protect itself against the birth of undesirable
citizens by placing restrictions upon the
right of marriage, and may inflict physical
injury on individuals for the protection of
society, that these two rights may properly
be joined to accomplish the end which the
Legislature has declared to be necessary and
proper. , ,«
The severity of the operations required
by this statute, and their possible effect, are
dealt with elsewhere in the brief submitted.
So, too, the right of the State to segregate
certain classes of individuals, not as^ crimi-
nals, but in defense of the right of the State
to care for the helpless, and to protect
society, has been established.
In re Dowdle, 169 Mass. 3S7-389;
Chevannes vs. Priestly, 80 Iowa 316-320;
Shenango vs. Wayne, 34 Pa. St. 184-186;
Keleher vs. Putnam, 60 N. H. 30-31.
Thus it appears that the right of restraint
may be joined to the infliction of physical
injury, for the protection of society.
It may be well to consider here the force
and effect to be given to paragraph six of the
act under review, which is as follows:
"6. If any provision of this act shall be
questioned in any court, and the provisions
of this act with reference to any class of
persons enumerated therein shall be held to
be unconstitutional and void, such determi-
nation shall not be deemed to invalidate the
entire act, but only such provisions thereof
with reference to the class in question as are
specially under review and particularly
passed upon by the decision of the court."
This clearly indicates that the Legislature,
in dealing with this subject, was not un-
aware of the difficulty which might lie in the
path of accomplishment of its purpose, and
called upon the Court thereby to consider
the act as applicable in the legislative mind,
not only to all of the classes involved, but
to any of them to which the provisions of
the statute might be held to be constitu-
tionally applicable.
It appears that the act includes the feeble-
minded, epileptic and other defective inmates
confined in the several reformatory, chari-
table and penal institutions in the counties
and the State, and the criminals defined by
paragraph two. The application of the act,
therefore, is to certain classes generally re-
ferred to as defectives, and to others gener-
ally classified as criminals. There may be,
possibly, more ground for objection to the
reason for the application of the provisions
of the act to criminal classes than to de-
fective classes, because of the difficulty of
properly determining the propriety of the
procedure of the act in criminal cases. To
this it may be suggested that the Legislature
has disposed, by its declaration, of the ques-
tion of propriety, when it has included
certain criminals within its declaration of
those to whom the act shall, in the protec-
tion of the public welfare, be applied, so that
this question as to whether the act ought
to include any criminal classes is not within
the jurisdiction of the Court, unless the
criminal classes so included may be shown
to have some additional guarantee beyond
that of the other classes involved, which is,
of course, possible.
Or, it may be suggested that this phase
of the act is not brought before the Court
by the present proceedings, which deal with
one of the so-called defective classes, and
that, therefore, the possible application of
the act to the criminal classes is one which
the Court is not called upon to decide, and,
further, it appears that if the Court should
be of the opinion that, as applied to criminal
classes, the act is unconstitutional, this pro-
vision may be exscinded, under the legisla-
tive sanction, and the remainder of the act
stand intact.
If, however, the Court shall be of the
opinion that the provisions ol paragraph two
indicate an intention on the part of the Legis-
lature to make this act applicable to the
criminal classes therein defined, as a punish-
ment for crime, rather than to designate the
classes of individuals to whom the act is to
be applicable, then it may be suggested that
this phase of the act falls within the author-
ity of State vs. Feilen, above referred to.
The act of the State of Washington, there
under review, dealt with habitual criminals.
The reasons filed are somewhat indefinite,
but they do not indicate any objection to the
form of the statute. Insofar as the five
distinct reasons have not been dealt with
in the general argument preceding, it seems
to be sufficient to say that reason number
two is answered by paragraph three of the
statute, provided it be sustained, and the pro-
172
Dh;tailh;d RevibIw of Litigation — New Jersey
ceedings seem to be, in all respects, in con-
formance with the statute, and reason
number five failing to disclose wherein the
proceedings are alleged to be defective, no
specific answer can be made thereto.
In conclusion, counsel begs to present to
the Court the brief of the Honorable Elmore
T. Elver, of the Wisconsin bar. This brief
deals so fully and capably with certain phases
of the legislation now under review, that no
attempt has been made to present the same
subject matter, or to deal with it in any
different form. Mr. Elver's brief is respect-
fully submitted to the Court for its consider-
ation and attention, with the request that Mr.
Elver be considered as admitted to this bar
pro hac vice.
Respectfully submitted,
NELSON B. GASKILL,
Assistant Attorney- General.
e. Brief by Elmore T. Elver, Esq., of the
Wisconsin Bar, as amicus curiae, uphold-
ing the constitutionality of the New
Jersey Sterilization Act.
This brief was submitted with that of Hon.
Nelson B. Gaskill, Assistant Attorney-
General of New Jersey. The author reviews
very carefully the legal, medical and biolog-
ical authorities on sterilization and related
social remedies. He then concludes that:
THE ACT IN QUESTION HAVING
BEEN PASSED FOR THE PROMO-
TION OF THE PUBLIC HEALTH,
SAFETY AND WELFARE, WE CON-
TEND NO CONSTITUTIONAL QUES-
TION (OTHER THAN THE ONE
DISCUSSED UNDER THE NEXT
HEADING) IS INVOLVED, FOR THE
REASON THAT THE PASSAGE OF
THE ACT IS THE VERY ESSENCE
OF THE EXERCISE BY THE LEGIS-
LATURE OF THE POLICE POWERS.
Hoboken vs. Goodman, 68 N. J. L. (39
Vr.) 217; 61 Atl. 1092;
Bryant, Com'r vs. Skillman Hardware
Co., 76 N. J. L. (47 Vr.) 46;
Meeham vs. Excise Com., 76 N. J. L. (46
Vr.) 867;
Passaic vs. Patterson Bill Posting Co.,
71 N. J. L. (42 Vr.) 76; 68 Atl. 342;
Hopper vs. Stack, 69 N. J. L. (40 Vr.)
562; 56 Atl. 1;
Jacobson vs. Massachusetts, 26 Sup. Ct.
Rep. 368; 197 U. S. 11; 49 L. ed. 643
(Compulsory Vaccination Law);
Noble State Bank vs. Haskell, 219 U. S.
104; 65 L. ed. 112; 31 Sup. Ct. Rep.
186.
In the Meeham case it is said:
"Police regulations o£ this character must
(Bishop's law, regulating places at which
intoxicating liquors are sold), in the absence
of clear evidence to the contrary, be deemed
to be based upon facts within the possession
of the Legislature rendering such legislation
proper, if not necessary. See Hopper vs.
Stack, 40 Vr. 562."
And again in the Hopper case the Court
says, at page 556 et seq., of the opinion:
"Apart, however, from these consider-
ations, the matter as an incident of police
regulation is clearly within the legislative
province, as will appear when the subject of
its police power is considered.
"Under this branch of the relator's argu-
ment a number of provisions are criticized
upon the ground that they tend to constrain
the otherwise untrammeled conduct of citi-
zens when seeking to give expression to their
political preferences, which is said to be one
of fheir natural rights. Assuming that
specific instances of this have been shown,
no constitutional question is involved, for
the reason that it is of the very essence of
the exercise by the Legislature of its police
powers that citizens may for the public good
(which is what the word 'police' means in
this context) be constrained in their conduct
even with respect to matters in themselves,
natural and otherwise right. Limitations of
strictly natural rights and reasonable regu-
lation of general constitutional rights are not
incompatible with the valid exercise of the
police powers."
* * «
"Every exercise of police power involves,
of necessity, the determination by the law-
maker of some fact quite apart from the
exercise of any legislative discretion concern-
ing it. The contrary is not conceivable.
Thus it is not conceivable that an act to
protect passengers upon railways could have
been enacted without the determination by
the Legislature that railways existed and that
passengers were carried by them — ^whether
such passengers required protection, and, if
so, of what sort would be the discretionary
element in such legislation. Similarly, the
act upon their statute book to protect
worshippers at camp-meetings could not
have been enacted without a determination
of the fact of the existence of such associa-
Detailed Review of Litigation — New Jersey
173
tions, the objects of those so associated and
the further fact that such objects included
immunity from interference by persons hav-
ing a hostile or even an alien purpose. This
elemental proposition is stated only to
emphasize the difiference between such de-
terminations by the Legislature of conditions
of this already in being and enactments by
the Legislature that bring into existence con-
ditions that provisionally had not, and but
for such legislation would not have, any
existence. This distinction is vital in its
bearing upon the argument before us, since
it marks the distance that separates an act
passed for the regulation of conduct upon
which citizens had already embarked from
the creation by the Legislature of institu-
tions that compel citizens to a course of
conduct upon which they had not volun-
tarily entered. Thus, to take the previous
illustration, there is a wide difference in a
constitutional sense between a statute that
recognized the existence and objects of
camp-meetings and affords protection to
those who adopt that form of worship, and
an act that instituted such gatherings and
compelled persons to associate for the pur-
poses prescribed by such act. Repeated
illustration cannot make this distinction more
plain or add to the force of its application
to the present argument. If in place of
camp-meetings we read political parties, and
if for the avowed object of such religious
gatherings we substitute the known purposes
of such political associations, we shall have
in its simplest form the domain of fact which
the legislation in question must have recog-
nized as subsisting before exercising over it
the regulative and protective features of the
statute under review. Thus the Legislature
must have recognized as a fact the existence
of political parties of varying numerical
strength by which candidates for public elec-
tion were placed in nomination updn party
tickets and platforms. It must likewise have
determined that in the selection of such
nominees each of these political parties
invited the co-operation of voters who were
in practical affiliation with it, and resented
attempts at participation by or interference
from those not so in sympathy. The Legis-
lature must, further, have decided that the
purposes of these party proceedings were
so far public purposes that those engaged in
them Ought to be protected in what they
had' undertkken, and that to this end the
police power of the State should be exercised.
These matters of fact being established, the
element of legislative discretion entered to
determine the measure of such regulation
and the mode of its exercise. In all of this
there is no calling of anything into existence,
no creation of political parties or of primary
meetings, no prescription of the terms of
membership — in fine, no initiation of any
essential matter, but only the recognition of
an existing state of facts and a determina-
tion to throw over them the protection of
police regulation. With the wisdom or effi-
ciency of this latter determination the judi-
cial branch of the government has nothing
whatsoever to do, nor does the preliminary
determination of fact concern it when, as in
the present case, neither in argument nor in
proof is there any suggestion that such de-
termination was not in accord with fact.
What the attitude of the courts would be
toward legislation of the palpably illusive
character suggested by some of the illustra-
tions used upon the argument need not be
discussed, not only because the question is
not in the case, but also because in no case
does one department of the government pre--
sume unworthy conduct on the part of a
co-ordinate branch."
In the Haskell case, page 110, Justice
Holmes uses the following language:
"It may be said in a general way that the
police power extends to all the great public
needs. Camfield vs. United States, 167 U. S.
518, 42 L. ed. 260, 17 Sup. Ct. Rep. 864. It
may be put forth in aid of what is sanctioned
by usage, or held by the prevailing morality
or strong and preponderant opinion to be
greatly arid immediately necessary to the
public welfare."
VIEWED FROM A PUNITIVE
STANDPOINT, WE CONTEND THAT
STERILIZATION AS A PUNISHMENT
WOULD NOT BE CRUEL AND UN-
USUAL. WE DO NOT FEEL THAT
WE CARE TO DISCUSS THIS PROPO-
SITION AT LENGTH ON ACCOUNT
OF THE DECISIVE STAND OF THE
COURTS, AND MERELY DIRECT
ATTENTION TO THE FOLLOWING
AUTHORITIES:
State vs. Gedkiche, 43 N. J. L. 86;
State vs. Feilen (Washington), 126 Pac.
Rep. 75;
United States vs. Weems, 217 U. S. 349;
54 L. ed. 793.
174
Detaii^ed Review of Litigation — New Jersey
For the reason hereinbefore set forth, we
respectfully submit that the order should not
be set aside and reversed.
Respectfully submitted,
ELMORE T. ELVER,
For the Defendant.
f. Decision of the New Jersey Supreme
Court,
NEW JERSEY SUPREME COURT. '
June Term, 1913.
THE STATE, Alice Smith,
Prosecutrix,
vs.
Board of Examiners of Feeble-
Minded (Including Idiots,
Imbeciles and Morons), Epi-
leptics, Criminals and Other
Defectives,
Defendants.
Submitted July 3, 1913.
Decided November 18, 1913.
« * »
Held, That the statute in question was
based upon a classification that bore no
reasonable relation to the object of such
police regulation, and hence denied to the
individuals of the class so selected the equal
protection of the laws guaranteed by the
Fourteenth Amendment of the Constitution
of the United States.
* # «
Before Justices GARRISON, TRENCH-
ARD AND MINTURN.
For the prosecutrix, Azariah M. Beekman.
For the defendant. Nelson B. GaskiU,
Assistant Attorney-General.
(Elmore T. Elver, Esq., of the Wisconsin
Bar, on the brief.)
The opinion of the Court was delivered
by GARRISON, J.
The question propounded is whether or
not the statute, under which the order now
before us was made, is a valid exercise of
the police power. The statute, it will be
observed, applies to criminals, in which
aspect it does not now concern us since the
prosecutrix is an epileptic, an unfortunate
person but not a criminal.
The order is made by the Board of Exam-
iners provided by the Act of April 81st, 1911
(P. L., p. 353). Briefly stated, the order
after reciting that Alice Smith is an epileptic
inmate of a State charitable institution, that
procreation by her is inadvisable, and that
there is no probability that her condition
will improve to such an extent as to render
procreation by her advisable, orders that
the operation of Salpingectomy be per-
formed upon the said Alice Smith.
Salpingectomy is the incision or excision
of the Fallopian tube, i. e., either cutting it
off or cutting it out. The Fallopian tube is
an essential part of the female reproductive
system and consists of a narrow conduit
some four inches in length that extends on
each side of a woman's body from the base
of the womb to the ovary upon thslt side.
These three organs, i. e., the ovary, the
Fallopian tube and the uterus, are all con-
cerned in normal child-bearing, the relation
between them being that the unfecundated
ovum which is periodically produced in the
ovary passes down through the Fallopian
tube into the body of the uterus where, if
fecundation by the male seed takes place,
or has taken place, the embryo is formed and
developed into the foetus or unborn child.
The statute is broad enough to authorize
an operation for the removal of any one of
these organs essential to procreation. These
organs are in pairs on either side of the body
excepting the uterus, which is a single organ
lying deep in the pelvis back of the bladder.
The xiperation of Salpingectomy, therefore,
to be effective must be performed in both
sides of the body, and hence is in effect two
operations, both requiring deep-seated sur-
gery under profound and prolonged anaes-
thesia, and hence involving all of the dangers
of life incident thereto, whether arising from
the anaesthetic, from surgical shock or from
the inflammation or infection incident to
surgical interference with the peritoneal
cavity. These ordinary incidents and dangers
of such an operation are not lessened where
the operation is not sought by the patient,
but must be performed upon her by force
at least to the extent of the production of
such anaesthesia as shall completely destroy
all liberty of will or action. The order is
addressed to no one and is silent as to the
person by whom this operation is to be per-
formed, and the statute likewise is silent
upon this subject, excepting that when an
order is made, "thereupon it shall be and
may be lawful for any surgeon qualified
under the laws of this State, under the di-
rection of the chief physician of said institu-
tion, to perform such operation.''
The prosecutrix falls within the classifica-
tion of the statute in that she is an inmate of
DETAILED Review of Litigation — New Jersey
175
the State Village for Epileptics, a State
charitable institution, "the objects of which,"
as stated in the act creating it, are "to
secure the humane, curative, scientific and
economical care and treatment of epilepsy."
(4 Comp. Stat., p. 4961.)
The prosecutrix has been an inmate of this
charity since 1903, and for the five years last
past she has had no attack of the disease.
From this statement of the facts it is clear
that the order with which we have to deal
threatens possibly the life and certainly the
liberty of the prosecutrix in a manner for-
bidden by both the State and Federal Con-
stitutions, unless such order is a valid exer-
cise of the police power. The question thus
presented is, therefore, not one of those con-
stitutional questions that are primarily
addressed to the Legislature, but a purely
legal question as to the due exercise of the
police power which is always a matter for
determination by the cdUrts.
This power, stated as broadly as the argu-
ment in support of the order requires, is the
exercise by the Legislature of a State of its
inherent sovereignty to enact and enforce
whatever regulations are in its judgment
demanded for the welfare of society at large
in order to secure or to guard its order,
safety, health or morals. The general limita-
tions of such power, to which the prosecutrix
must appeal, is that under our system of
government the artificial enhancement of the
public welfare by the forceable suppression
of the constitutional rights of the individual
is inadmissible.
Somewhere between these two funda-
mental propositions the exercise of the
police power in the present case must fall
and its assignment to the former rather than
to the latter involves consequences of the
greatest magnitude. For while the case in
hand raises the very important and novel
question whether it is one of the attributes
of government to essay the theoretical im-
provement of society by destroying the
function of procreation in certain of its
members who are not malefactors against its
laws, it is evident that the decision of that
question carries with it certain logical conse-
quences having far-reaching results. For
the feeble-minded and epileptics are not the
only persons in the community whose elimi-
nation as undesirable citizens would, or
might in the judgment of the Legislature,
be a distinct benefit to society. If the en-
forced sterility of this class be a legitimate
exercise of governmental power, a wide field
of legislative activity and duty is thrown
open to which it would be difficult to assign
a legal limit.
If in the present case we decide that such
a power exists in the case of epileptics, the
doctrine we shall have enunciated cannot
stop- there. For epilepsy is not the only
disease by which the welfare of society at
large is injuriously affected; indeed, not
being communicable by contagion or other-
wise, it lacks some of the gravest dangers
that attend upon such diseases as pulmonary
consumption or communicable syphilis. So
that it would seem to be a logical necessity
that, if the Legislature may, under the police
power, theoretically benefit the next gener-
ation by the sterilization of the epileptics of
this, it both may and should pursue the like
course with respect to the other diseases
mentioned with the additional gain to so-
ciety thereby arising from the protection of ■
the present generation from contagion or
contamination. Even when these and many
other diseases that might be named have
been included, the limits of logical necessity
have by no means been reached.
There are other things besides physical
or mental diseases that may render persons
undesirable citizens or might do so in the
opinion of a majority of a prevailing legis-
lature. Racial differences, for instance, might
afford a basis for such an opinion in com-
munities where that question is unfortunately
a permanent and paramount issue. Even
beyond all such considerations it might be
logically consistent to bring the philosophic
theory of Malthus to bear upon the police
power to the end that the tendency of popu-
lation to outgrow its means of subsistence
should be counteracted by surgical inter-
ference of the sort we are now considering.
Evidently the large and underlying ques-
tion is how far is government constitutionally
justified in the theoretical betterment of
society by means of the surgical sterilization
of certain of its unoffending but undesirable
members. If some, but by no means all, of
these illustrations are fanciful, they still serve
their purpose of indicating why we place the
decision of the present case upon a ground
that has no such logical results or untoward
consequences.
Such a ground is presented by the classifi-
cation upon which the present statute is
based, which is of such a nature that the
persons included within it are not afforded
the equal protection of the laws under the
Fourteenth Amendment of the Constitution
176
Detailed Review oe Litigation — New Jersey
of the United States, which provides that
"no State shall deny to any person within
its jurisdiction the equal protection of the
laws." Under this provision it has been
uniformly held that a State statute that bears
solely upon a class of persons selected by it
must not only bear alike upon all the. indi-
viduals of such class, but that the class as a
whole must bear some reasonable relation to
the legislation thus solely affecting the indi-
viduals that compose it.
"It is apparent," said Mr. Justice Brewer
in Gulf, Colorado, Etc., R. R. Co. vs. Ellis
(165 U. S., p. 150), after a review of many
cases, "that the mere fact of classification is
not sufficient to relieve a statute from the
reach of the equality clause of the Four-
teenth Amendment, and that in all cases it
must appear, not only that a classification
has been made, but also that it is one based
upon some reasonable ground — some differ-
ence which bears a just and proper relation
to the attempted classification — and is not a
mere arbitrary selection."
This summarizes a mass of cases that
might be cited.
Turning our attention now to the classifi-
cation on which the present statute is based
and laying aside criminals and persons con-
fined in penal institutions with which we
have no present concern, it will be seen that
— as to epileptics, with which alone we have
to do — the force of the statute falls wholly
upon such epileptics as are "inmates con-
fined in the several charitable institutions in
the counties and State." It must be apparent
that the class thus selected is singularly
narrow when the broad purpose of the
statute and the avowed object sought to be
accomplished by it are considered. The
objection, however, is not that the class is
small as compared with the magnitude of
the purpose in view, which is nothing less
than the artificial improvement of society at
large, but that it is singularly inept for the
accomplishment of that purpose in this re-
spect, viz., that if such object requires the
sterilization of the class so selected, then
fortiori does it require the sterilization of
the vastly greater class who are not pro-
tected from procreation by their confinement
in State or county institutions.
The broad class to which the legislative
remedy is normally applicable is that of
epileptics, i. e., all epileptics. Now, epilepsy,
if hot, as some authorities contend, mainly
a disease of the well-to-do and over-fed, is
at least one that affects all ranks of society,
the rich as well as the poor. If it be con-
ceded for the sake of argument that the
Legislature select one of these broadly de-
fined classes, i. e., the poor, and may legis-
late solely with reference to this class, it is
evident that by the further sub-classification
of the poor into those who are, and those
who are not, inmates in public charitable
institutions, a principle of selection is adopted
that bears no reasonable relation to the pro-
posed scheme for the artificial betterment of
society. For not only will society at large
be just as injuriously affected by the pro-
creation of epileptics who are not confined
in such institutions as it will be by the pro-
creation of those who are so confined, but
the former vastly outnumber the latter and
are in the nature of things vastly more ex-
posed to the temptation and opportunity of
procreation, which indeed in the cases of
those confined in a presumably well con-
ducted institution is reduced practically
to nil.
The particular vice, therefore, of the
present classification is not so much that it
creates a sub-classification based upon no
reasonable basis, as that having thereby
arbitrarily created two classes, it applies the
statutory remedy to that one of those classes
to which it has the least, and in no event a
sole application, and to which indeed, upon
the presumption of the proper management
of our public institutions, it has no applica-
tion at all. When we consider that such
statutory scheme necessarily involves a sup-
pression of personal liberty and a possible
menace to the life of the individual who must
submit to it, it is not asking too much that
an artificial regulation of society that
involves these constitutional rights of some
of its members shall be accomplished, if at
all, by a statute that does not deny to the
persons injuriously affected the equal pro-
tection of the laws guaranteed by the
Federal Constitution.
The suggestion that the classification
might be sufficient, if the scheme of the
statute were to turn the sterilized inmates of
such public institutes loose upon the com-
munity and thereby to effect a saving of
expense to the public, is not deserving of
serious consideration. The palpable inhu-
manity and immorality of such a scheme
forbids us to impute it to an enlightened
Legislature that evidently enacted the
present statute for a worthy social end upon
DETAILED Review oe Litigation — New Jersey
177
the merits of which our present decision
upon strictly legal lines is in no sense to be
regarded as a reflection.
The conclusion we have reached is thjft,
without regard to the power of the State to
subject its citizens to surgical operations
that shall render procreation by them im-
possible, the present statute is invalid in that
it denies to the prosecutrix of this writ the
equal protection of the laws to which under
the Constitution of the United States she is
entitled.
The order brought up by this writ is set
aside.
NOTE:
At the time of the above given decision
(November, 1913) the attorney for the
Board of Examiners announced their
intention of carrying the case to higher
Courts, but the matter was allowed to
lapse. Up to March, 1919, nothing
further had been .done.
CHAPTER VII. (Continued)
PART III. IOWA.
1. State Board of Parole
a. Order for Sterilization 179
2. United States District Court.
a. Temporary Restraining Order 180
b. Bill of Complaint •• . 181
c. Amendment to Bill of Complaint 183
d. Reports of Attorney General 184
e. Minutes of Meeting of Board of Parole 185
f. Decision of District Court '. 186
g. Order for Temporary Injunction 190
3. United States Supreme Court.
a. Brief for Plaintiffs in Error 191
b. Supplementary Brief 198
c. Decision of Supreme Court of United States 200
Di!;taii,]Jd RuviEw of Litigation— Iowa
179
III. IOWA.
(Chapter 189, April 19, 1913.)
The Iowa statute provided for a consider-
ation of family history studies in order to
determine pedigree values, and without re-
course to court procedure in each case. It
authorizes the sterilization of such inmates
of "each public institution in the state
entrusted with the care and custody of crimi-
nals, rapists, idiots, feeble-mmded, imbeciles,
lunatics, drunkards, drug fiends, epileptics,
syphilitics, moral and sexual perverts, and
diseased and degenerate persons," as a ma-
jority of the Board of Parole may deem
potential parents of defectives. The Federal
Court appears to have assumed jurisdiction
in the matter on account of the statute's
alleged violation of the Fourteenth Amend-
ment to the Federal Constitution, which pro-
vides that no state shall deny to any of its
citizens the equal protection of the laws.
The test case arose in the person of
Rudolph Davis, an inmate of the Iowa Peni-
tentiary. He had been twice convicted of
felony, and the case here took on a punitive
aspect. The applicability of the following
items on the Bill of Rights were considered:
Bill of Attainder, ex post facto law, twice in
jeopardy of life or limb, and due process of
law. The statute was held unconstitutional
by Judge Smith McPherson because in his
opinion it violated the fundamental qualities
in each of the above-named particulars.
Honorable W. R. C. Kendrick, Assistant
Attorney-General of Iowa, under date of
February 21, 1918, supplied the following
information:
"On March 11, 1914, a bill of equity was
filed in the District Court of the United
States for the Southern District of Iowa,
Eastern Division, at Keokuk, being the April
Term, 1914, of said court, by Rudolph Davis,
plaintiff, against William H. Berry, et al.,
constituting the Board of Parole of Iowa;
James C. Saunders, Warden of the Peniten-
tiary at Fort Madison; and Austin F. Phil-
pott, physician of said institution, asking for
a writ of injunction restraining defendants
from performing the operation of vasectomy
upon the plaintiff, who was a convict in said
penitentiary.
"Defendants were proceeding to act under
Chapter 187, Acts of the 35th General
Assembly (Laws of 1913), by the provisions
of which the State Board of Parole was
directed and commanded to examine the
inmates of all public institutions in the state,
and if they decided that procreation by any
such inmates would probably result in the
birth of children with a tendency toward
venereal disease, deformity, crime, imbe-
cility, idiocy, insanity, and the like, then and
in that event the Board of Parole was
authorized to order the physician of the
institution to perform the operation which
would result in sterilization. As applying
to inmates of the state penitentiaries, the
law commanded the board to order such
operation performed upon every inmate who
had been twice convicted of a felony.
"After the filing of said bill the attorney-
general of Iowa gave an opinion to the
Board of Parole that Chapter 187 did not
apply to any inmate who had not been twice
convicted of a felony, since the law went
into effect, and recommended that the board
rescind and cancel their order for steriliza-
tion. Acting upon that opinion the board
cancelled their former order, and the
attorney-general, acting as counsel for the
Board, moved the court to dismiss com-
plainant's bill. However, the court over-
ruled said motion, issued a temporary writ, ■
and on June 24, 1914, entered judgment and
decree, holding Chapter 187 void, as being
in violation of the Constitution which pro-
hibits the infliction of crpel and inhuman
punishment. The lower court's decision will
be found in 216 Fed. Rep. 419. The case was
appealed to the Supreme Court of the United
States, and the judgment of the lower court
reversed, not, however, for error in mis-
stating the law by the lower court, but for
the reason that pending the appeal the Iowa
Legislature repealed the law under which
suit was brought, and, therefore, the injunc-
tion was superfluous and the higher court
had practically nothing to decide. This case
•is reported in Davis vs. Berry, 342 U. S. 468."
1. STATE BOARD OF PAROLE.
On March 5, 1914, the Iowa State Board
of Parole ordered the sterilization by
vasectomy of Rudolph Davis, an inmate (No.
10406) of the State Penitentiary at Fort
Madison.
(a) Order of the Board directing oper-
ation on Rudolph Davis, No. 10406, an in-
mate of the Penitentiary at Fort Madison.
"To Managing Officer of the Penitentiary
at Fort Madison:
"At a meeting of the Board authorized
by Chapter 187 of the Acts of the Thirty-
Fifth General Assembly of the State of
180
Dh;taii,h;d RsviEw of Litigation — Iowa
Iowa, held at the said penitentiary in Fort
Madison, Iowa, on the 14th day of February,
1914, said Board examined into the mental
and physical condition, the records and
family history of Rudolph Davis, No. 10406,
an inmate of said penitentiary, and found
said Rudolph Davis, No. 10406, to be an
inmate of the said penitentiary; that he has
been twice convicted of a felony, the last
conviction being for a crime committed since
the 4th day of July, 1913. He is now serving
under sentence on the last conviction, and
that the operation of vasectomy should be
performed on said Rudolph Davis, because
he has been twice convicted of a felony.
"It is therefore ordered that the operation
of vasectomy be performed on said Rudolph
Davis, No. 10406, an inmate of said peniten-
tiary, and that A. F. Philpott, physician of
said penitentiary, be and is authorized and
directed to forthwith perform said operation
of vasectomy, or have same performed by
some one selected by him, and make return
hereon to the Iowa Board of Parole.
"All done under authority given in Chap-
ter 187 of the Acts of the Thirty-Fifth
General Assembly of the State of Iowa, and
in pursuance of the findings and order of the
local board of said penitentiary as above
recited.
"In testimony whereof the undersigned
Chairman of the Board of the Penitentiary
organized and acting in pursuance of the
provisions of Chapter 187 of the Acts of the
Thirty-Fifth General Assembly of the State
of Iowa, hereto attaches his signature.
"Signed this 5th day of March, 1914.
"W. W. BERRY,
"Chairman.
"(Endorsed:) Filed March 11, 1914. Wni. C.
McArthur, Clerk, by Frank Wahlgren,
Deputy."
2. JUNE 24, 1914, THE UNITED
STATES DISTRICT COURT OF
SOUTHERN IOWA, Eastern Division,
held the Iowa Act of April 19, 1913 (tlie
second sterilization statute of this state),
contrary to Section 1, Article XIV of the
Constitution of the United States, because
said statute provides for cruel and unusual
punishment, constitutes a bill of attainder,
and does not provide for due process of law
in inflicting punishment. (316 Fed. Rep.
419.)
The principal documents in the case
follow :
(a) Temporary Restraining Order.
"In the District Court of the United States
in and for the Southern District of Iowa,
Eastern Division, at Keokuk.
No. 9-A. Equity.
RUDOLPH DAVIS, Plaintiff,
vs.
"WILLIAM H. BERRY, JOHN E.
HOWE, and DAVID C. MOTT, Consti-
tuting the Board of Parole of Iowa;
James C. Sanders, Warden and Managing
Ofificer of the Penitentiary at Fort Madi-
son, Iowa, and Austin F. Philpott, Physi-
cian of said Penitentiary.
TEMPORARY RESTRAINING ORDER.
"Whereas, in the above named suit it has
been made to appear upon the verified bill
of the plaintiff, filed herein that a temporary
restraining order preliminary to the hearing
for an interlocutory injunction is proper, and
that prima facie the plaintiff is entitled
thereto. Now, on motion of said plaintiff,
it is ordered that the defendants appear
before the District Court of the United
States, for the Southern District of Iowa,
in the Eighth Circuit, at the court room of
said Court at Council Bluffs, upon the 21st
day of March, 1914, at 9 o'clock a. m. of
said day, and then and there show cause, if
any they have, why the interlocutory writ
of injunction therein prayed for should not
issue, and it appearing to the undersigned
that there is danger of irreparable injury
being caused to the plaintiff before the hear-
ing of said application for the preliminary
interlocutory writ of injunction can be heard
unless the said defendants are, pending such
hearing, restrained as hereinafter set forth.
And it appearing that if notice of this hear-
ing should be given that the threatened
danger complained of would occur, and that
it is necessary and proper that this order be
made without notice. Therefore plaintiff's
application for such temporary restraining
order is granted without bond.
"Now, therefore, it is ordered that you,
ihe said William H. Berry, John E. Howe,
and David C. Mott, constituting the Board
of Parole of Iowa; James C. Sanders, War-
den and Managing Officer of the Peniten-
tiary at Fort Madison, Iowa, and Austin F.
Philpott, Physician of said Penitentiary, de-
fendants herein, your agents, servants and
employees, and all persons acting by or under
your "authority or direction be, and you are
hereby specially restrained and enjoined
from performing, or causing the operation
Detailed Review oe Litigation — Iowa
181
of vasectomy to be performed upon the
plaintiff, and the said defendant, Austin F.
Philpott, as Physician of the penitentiary at
Fort Madison, Iowa, is especially restrained
from designating any other person to per-
form said operation upon the plaintiff until
the further order of this Court.
"It is further ordered that a copy of this
order, certified under the hand of the Clerk
and the seal of this Court, be served on each
of the defendants by registered mail.
"Dated at Council Bluffs, in the Southern
District of Iowa, this 11th day of March,
1914.
(Signed "SMITH McPHERSON,
"District Judge in and for the Southern
District of Iowa.
"(Indorsed:) Filed March 11, 1914. Wm. C;
■ McArthur, Clerk, by Frank Wahlgren,
Deputy."
b. Bill of Complaint.
In the District Court of the United States
for the Southern District of Iowa, Eastern
Division, at Keokuk, April Term, A. D.
1914.
In Equity. No. 9-A.
RUDOLPH DAVIS, Plaintiff.
vs.
WILLIAM H. BERRY, JOHN E..HOWE,
AND DAVID C. MOTT, Constituting
the Board of Parole of Iowa; James C.
Sanders, Warden and Managing Officer
of the Penitentiary at Fort Madison, Iowa,
and Austin F. Philpott, Physician of said
Penitentiary, Defendants.
To the Honorable Judge of the United
States District Court for the Southern
District of Iowa:
Rudolph Davis, the plaintiff, complains
and says:
1st. That the plaintiff is a citizen and
resident of the State of Louisiana, tempora-
rily confined in the Iowa State Penitentiary,
at Fort Madison, in the County of Lee and
State of Iowa, and -within the Southern
Judicial District of Iowa.
2d. That the defendant, William H.
Berry, is a citizen of the State of Iowa, and
a resident of Indianola, Warren County, in
the State of Iowa, within the Southern
Judicial District of Iowa; the defendant,
John E, Howe, is a citizen of the State of
Iowa, and a resident of Adair County, in the
State of Iowa, within the Southern Judicial
District of Iowa; the defendant, David C.
Mott, is a citizen of the State of Iowa, and
a resident of Iowa County, in the State of
Iowa, within the Northern Judicial District
of Iowa; the defendant, James C. Sanders, is
a citizen of the State of Iowa, and a resident
of the County of Lee, in the State of Iowa,
within the Eastern Division of the Southern
Judicial District of the State of Iowa; and
the defendant, Austin F. Philpott, is a citizen
of the State of Iowa, and a resident of the
County of Lee, in the State of Iowa, within
the Eastern Division of the Southern Judicial
District of Iowa.
3d. That the plaintiff is a convict. No.
10406, in the said penitentiary, under a judg-
ment of the District Court in and for Linn
County, Iowa, made and entered oh the 27th
day of August, 1913, sentencing him to not
exceeding ten years, for the crime of break-
ing and entering.
4th. That the defendants, William H.
Berry, John E. Howe and David C. Mott,
are members of, compose and constitute the
Board of Parole of the State of Iowa; that
the defendant, James C. Sanders, is the
warden and managing officer of the Iowa
State Penitentiary at Fort Madison, Lee
County, Iowa; and the defendant, Austin F.
Philpott, is the physician of said penitentiary,
which is a. public institution of the State of
Iowa.
5th. That acting under Chapter 187 of
the Acts of the Thirty-fifth General As-
sembly of the State of Iowa, a copy of
which is hereto attached, marked Exhibit
"A," and made a part hereof, the defendants,
acting- as the board of said penitentiary,
organized under said Chapter 187, did, on
the 14th day of February, 1914, decide by
an unanimous vote that the operation of
vasectomy should be performed on this
plaintiff; that the minutes of said board in
the plaintiff's case read as follows:
"The case of Rudolph Davis, No. 10406,
was presented and on examination it was
found that Rudolph Davis had been twice
convicted of a felony, the last conviction
being for a crime committed since the 4th
day of July, 1913. He is now serving under
the sentence on last conviction, and is a
prisoner in the penitentiary at Fort Madison.
It was moved that the operation of vasec-
tomy be performed on Rudolph Davis, No.
10406, and said motion prevailed unani-
mously."
6th. That on the 5th day of March, 1914,
the said Board, through its chairman, the
182
Detailed Review of Litigation — Iowa
defendant, William H. Berry, issued its man-
date to the defendant, James C. Sanders, as
managing ofKcer of said penitentiary, order-
ing that the operation of vasectomy be per-
formed on this plaintiff, and directing the
defendant, Austin F. Philpott, as physician
of said penitentiary, to forthwith perform
said operation on this plaintiff, or have same
performed by some one selected by him.
A copy of said mandate is hereto attached,
marked Exhibit "B," and made a part
hereof.
7th. That the defendant, Austin F. Phil-
pott, threatens to immediately designate
some person to forthwith perform said oper-
ation on this plaintiff, and will do so unless
restrained by this Honorable Court.
8th. That the operation of vasectomy
consists in the resection or incision of the
vas deferens, and would sterilize this plain-
tiff and render him incapable of procreation.
, 9th. That said Chapter 187 of the Acts
of the Thirty-Fifth General Assembly of the
State of Iowa violates and is contrary to
Section 10, Article I, of the Constitution of
the United States and is, therefore, void and
of no effect; that as applied to this plaintiff
it is ex post facto in that it was approved
April 19, A. D. 1913, and became effective
July 4, 1913; that he has not been twice con-
victed of a felony since July 4, 1913, and
never has been twice convicted of a felony
in the State of Iowa.
10th. That said Chapter 187 of the Acts
of the Thirty-Fifth General Assembly of the
State of Iowa violates and is contrary to
Article I, Section 21 of the Constitution of
Iowa, and is therefore void and of no effect
in that as applied to this plaintiff it is ex
post facto for the reasons set forth in the
9th paragraph of this bill.
11th. That said Chapter 187 of the Acts
of the Thirty-Fifth General Assembly of the
State of Iowa is contrary to Section 10 of
Article I of the Constitution of the United
States, which forbids any state to pass a Bill
of Attainder in that it is a legislative act
inflicting punishment without a judicial trial;
that the said Act creates a new offense under
the laws of' Iowa, prescribes a punishment
therefor, sentences the plaintiff and all other
convicts who have been twice convicted of
a felony, and orders the execution of the
sentence without indictment, information or
trial, and without giving the convict an
opportunity to defend himself, without re-
quiring legal evidence, and without giving
the convict the benefit of counsel.
13th. That said Chapter 187 of the Acts
of the Thirty-Fifth General Assembly o'f the
State of Iowa is contrary to Article I, Sec-
tion 31 of the Constitution of Iowa, for the
reasons set forth in paragraph 11 of this bill.
13th. That said Chapter 187 of the Acts
of the Thirty-Fifth General Assembly of
Iowa is contrary to Section 1, Article I, of
the Constitution of Iowa, for the reason that
it deprives the plaintiff of his inalienable
right to enjoy life and liberty and to pursue
and obtain safety and happiness.
14th. That said Act of the General As-
sembly of Iowa is contrary to Section 9,
Article I, of the Constitution of Iowa, which
provides that the right of a trial by jury
shall remain inviolate in that the said Act
■ prescribes the punishment of vasectomy for
a convict twice convicted of a felony without
requiring the fact of such convictions to be
determined by a jury but leaves the deter-
mination of that question to the Board of
Parole, the managing officer of the prison,
and the prison physician, and plaintiff fur-
ther avers that the indictment against him
in Linn County, Iowa, under which he was
convicted and sentenced to the said peniten-
tiary, and under which judgment he is now
confined did not refer to the alleged former
conviction of the plaintiff; that no evidence
of a former conviction was introduced and
the jury did not specially find that this
plaintiff had been formerly convicted.
15th. That said Act of the General As-
sembly of Iowa is contrary to the Fourteenth
Amendment of the Constitution of the
United States, which provides "that no state
shall deny to any person within its jurisdic-
tion the equal protection of the laws," in
that it applies only to persons who have
been twice convicted of felonies and are
inmates of the penitentiary, while it does not
apply to persons who have been twice con-
victed of felonies but are not inmates of the
penitentiary.
16th. That said Act of the General As-
sembly of the State of Iowa is contrary to
the Fourteenth Amendment of the Constitu-
tion of the United States for the reason that
it abridges the privileges and immunities of
this plaintiff as a citizen of the United States
and deprives him of this liberty without due
process of law.
17th. That said Act of the General As-
sembly of Iowa is contrary to Section 9,
Article I, of the Constitution of Iowa for
the reason that it deprives the plaintiff of
liberty without due process of law.
DuTAii^fiD Review of Litigation — Iowa
183
18th. That said Chapter 187 of the Acts
of the Thirty-Fifth General Assembly of
Iowa is contrary to Section 17, Article I,
of the Constitution of Iowa, which provides
that cruel and unusual punishment shall not
be inflicted, for the reason that the operation
of vasectomy is a cruel and unusual punish-
ment.
19th. That plaintiff is without adequate
remedy at law; that plaintiff will suffer
irreparable loss and damage unless a tempo-
rary restraining order is granted without
notice restraining the defendants or any of
them, and any one acting under their author-
ity or designation, from performing said
operation of vasectomy upon him.
30th. That the amount in controversy in
this action exceeds, exclusive of interest and
costs, the sum or value of Three Thousand
($3,000.00) Dollars.
21st. That plaintiff is without means and
is unable to give an injunction bond.
Wherefore, to the end that he may obtain
the relief to which he is justly entitled in the
premises, the plaintiff prays the court:
First: To grant him your writ of sub-
poena, directed to William H. Berry, John
E. Howe and David C. Mott, constituting
the Board of Parole of Iowa; James C. San-
ders, Warden wid Managing Officer of the
penitentiary at Fort Madison, Iowa, and
Austin F. Philpott, Physician of said peni-
tentiary, requiring and commanding all of
them, and each of them, to appear and
answer this bill of plaintiff at the next April
term, 1914, of said court, in and for the East-
ern Division at Keokuk, but not under oath,
answer under oath being expressly waived.
Second. To grant an interlocutory writ
of injunction commanding the said defend-
ants, and each of them, their servants, agents,
employees, and all persons under their author-
ity, direction or control, to absolutely desist
and refrain from performing the operation of
vasectomy upon this plaintiff, and command-
ing the said defendant, Austin F. Philpott,
to refrain from designating any other person
to perform said operation on this plaintiff,
and that upon the final hearing and determi-
nation of this suit that said injunction be
made perpetual, and that plaintiff may have
such other and further relief, preliminary and
final, as to the court may seem meet and
proper, and which equity may require, and
for costs.
Third. That the Court grant unto your
plaintiff a temporary restraining order, with-
out notice, restraining the said defendants.
and each of them, their servants, employees,
and agents and all persons under their
authority, direction or control, from per-
forming, or causing the operation of vasec-
tomy to be performed on this plaintiff, and
restraining the said defendant, Austin F.
Philpott, as physician of said penitentiary,
from designating any other person to per-
form said operation upon this plaintiff until
such time as your Honor shall direct and
appoint a hearing herein.
(Signed) GEORGE B. STEWART,
Solicitor and Counsel for Plaintiff.
STATE OF IOWA,
Lee County, ss:
I, Rudolph Davis, on my oath depose and
say that I am the plaintiff in the above
entitled suit; that I have heard the foregoing
Bill of Equity read over and that the facts
and allegations therein stated are true as
I verily believe.
(Signed) RUDOLPH DAVIS.
Subscribed and sworn to before me by the
said Rudolph Davis this 10th day of March,
A. D. 1914.
(Signed) JESSE SCHLARBAUM,
[Seal] Notary Public in and for Lee
County, Iowa.
(Endorsed:) Filed March 11, 1914. Wm. C.
McArthur, Clerk, by Frank Wahlgren,
Deputy.
c. Amendment to Bill of Complaint.
In the District Court of the United States
for the Southern District of Iowa, Eastern
Division, at Keokuk, April Term, A. D.
1914.
RUDOLPH DAVIS, Plaintiff,
vs.
WILLIAM H. BERRY, JOHN E. HOWE,
AND DAVID C. MOTT, Constituting
the Board of Parole of Iowa; James C.
Sanders, Warden and Managing Officer
of the Penitentiary at Fort Madison, Iowa,
and Austin F. Philpott, Physician of said
Penitentiary, Defendants.
AMENDMENT TO BILL.
Now comes the plaintiff and amends his
bill heretofore filed in the manner following:
1. He withdraws paragraph 14 of said bill
and inserts in lieu thereof the following^:
That said Act of the General Assembly of
Iowa is contrary to Section 9 of Article I of
the Constitution of Iowa, which provides
that the right to a trial by jury shall remain
inviolate in that the said act prescribes the
184
Detailed Review of Litigation— Iowa
punishment of vasectomy for a convict twice
convicted of a felony without requiring the
fact of such conviction to be determined by
a jury, or even by the Board created by said
act, but arbitrarily and peremptorily orders
said operation to be performed on convicts
twice convicted of a felony, and plaintiff
further avers that the information against
him in Linn County, Iowa, under which he
was convicted and sentenced to said peniten-
tiary, and under which judgment he is now
confined, did not refer to the alleged former
conviction of the plaintiflf; that no evidence
of a former conviction was introduced and
that the jury did not specially find that this
plaintiff had been formerly convicted; that
an exemplified copy of said information is
hereto attached, marked Exhibit "C" and
made a part hereof.
2. Plaintiff avers that he has been twice
convicted of a felony; once in Linn County,
Iowa, and once in Pulaski County, in the
State of Arkansas, in the year 1909.
(Signed) GEORGE B. STEWART,
Solicitor and Counsel for Plaintiff.
UNITED STATES OF AMERICA,
Southern District of Iowa.
STATE OF IOWA,
Lee County, ss:
I, Rudolph Davis, on my oath depose and
say that I am the plaintiff in the above
entitled suit; that I have heard the foregoing
amendment to the Bill in Equity in said
suit read over, and that the facts and allega-
tions therein stated are true as I verily
believe.
(Signed) RUDOLPH DAVIS.
Subscribed and sworn to before me by the
said Rudolph Davis this 9th day of April,
A. D. 1914.
(Signed) JESSE SCHLARBAUM,
[Seal] Notary Public in and for Lee
County, Iowa.
(Endorsed:) Filed April 14th, 1914. Wni. C.
McArthur, Clerk, by Frank Wahlgrcn,
Deputy.
d. Reports of Attorney- General to Board of
Parole, October 21, 1913:
Dear Sir: I am in receipt of your com-
munication directing my attention to Chap-
ter 187, Acts of the Thirty-Fifth General
Assembly, relating to the prevention of the
procreation of certain delinquents and de-
fectives, and requesting to be advised:
1st. As to whether the act applies to
prisoners confined in the penal institutions
referred to in said act who were convicted
prior to the taking effect of said act; that
is to say prior to the 4th day of July, 1913;
and,
2d. Does the act include persons con-
victed of misdemeanors and confined in jails
and minor prisons of the state.
First. The question is not free from diifi-
culty. In this question is involved (a) the
intention of the legislature, that is to say,
whether or not the legislature intended the
act to apply to persons confined or convicted
prior to the taking effect of the act; and (b)
if the legislature did so intend, is the act
constitutional.
Assuming then that the legislature in-
tended the ac.t to apply to persons convicted
or senteticed prior td the taking effect of
said act, the same would be unconstitutional
as being ex post facto, if it may be con-
sidered.as a means of punishment or even if
it contained directly an element of punish-
ment. If, however, it is looked upon wholly
as a sanitary and police measure in the
interest of society at large, and directly in
the interest of the possible offspring of the
persons referred to in the act, then it would
clearly not be unconstitutional.
It is a cardinal principle of construction
that every act should be so construed as to
relieve it of grave constitutional questions if
possible. This being true, and it also being
uncertain as to whether it was the intention
of the General Assembly to make the act
apply to persons convicted of crime prior
to the taking effect of the act, I am of the
opinion that the act should be construed to
apply only to those persons who have been
convicted of crime subsequent to the taking
effect of said act.
Second. After a careful consideration of
the entire act I am clearly of the opinion
that it was not the intention of the legisla-
ture to include therein misdemeanants or
persons confined in county and city jails.
Respectfully submitted,
(Signed) GEORGE COSSON,
Attorney-General.
October 31, 1913.
Hon. W. H. Berry, Chairman Board of
Parole, Des Moines, Iowa.
REPORT OF APRIL 1, 1914.
Gentlemen: On the 17th of July, 1913,
your board submitted the following ques-
tions to the Department of Justice with a
request for an official opinion thereon:
Detailed Review of Litigation — ^Iowa
185
1st. "Do the prisoners confined in the
prisons named above whose crime was com-
mitted before the taking effect of the act
referred to, come under the provisions
thereof?"
2d. "Does the act include persons con-
victed of misdemeanors confined in jails and
minor prisons of the state?"
On the 21st of October, 1913, an official
opinion was given in which it was held that
the act did not include misdemeanants or
persons confined in county and city jails.
In discussing the first proposition it was
said:
"The first question is not free from diffi-
culty. In this question is involved (a) the
intention of the legislature; that is to say,
whether or not the legislature intended the
act to apply to persons confined or con-
victed prior to the taking effect of the act;
and (b) if the legislature did so intend, is the
act constitutional?"
In discussing the question I there said
that "Assuming that the legislature intended
the act to apply to persons convicted or sen-
tenced prior to the taking effect of said act,
the same would be unconstitutional, as being
ex post facto, if it may be considered as a
means of punishment or even if it contained
directly an element of punishment;" and that
"It is a cardinal principle of construction
that every act should be so construed as to
relieve it of grave constitutional questions
if possible;" and that, "This being true, and
it also being uncertain as to whether it was
the intention of the General Assembly to
make the act apply to persons convicted of
crime prior to the taking effect of the act,
I am of the opinion that the act should be
so construed as to apply only to those per-
sons who have been convicted of crime
subsequent to the taking effect of said act."
The precise question now preserited by the
complaint filed by George B. Stewart on
behalf of Rudolph Davis seems not to have
been passed upon in that opinion, viz: Was
it the intention of the legislature that both
convictions should be subsequent to the
taking effect of the act?
It will be noticed as the language used
by the General Assembly is general in its
nature, and after a careful consideration of
the act, I am of the opinion that the act
should be so construed as to require that
Jjoth convictions- of a felony must be subse-
quent to the passage of the act. This being
true, and there now being no person con-
fined in the penitentiary who has been twice
convicted of felony since the passage of
Chapter 187, acts of the Thirty-Fifth General
Assembly, it follows that the order made by
the Board of Parole designating Rudolph
Davis and others should be cancelled and
that no prisoners should be designated by the
commission named upon whom the opera-
tion should be performed who has not been
twice convicted of a felony subsequent to
the passage of the act. Since the act does
not make it clear whether both convictions
should be had in the State of Iowa, and as
it is well known that what is a felony in one
state may be a misdemeanor in another state,
and vice versa, and since the Thirty-Sixth
General Assembly will convene on the
second Monday in January, 1915, I suggest
that no further action be taken under this
particular section of the act until the General
Assembly has an opportunity to make the
provision in question more specific.
This opinion is limited to the construction
to be placed upon the single phrase under
considera'tion, viz., a prisoner "who has been
twice convicted of a felony."-
(Signed)* GEORGE COSSON,
Attorney- General of Iowa.
April ], 1914.
Honorable Board of Parole.
e. Minutes of Meeting of Board of Parole
et al., April 15y 1914.
MINUTES OF -MEETING OF THE
BOARD FOR THE ADMINISTRA-
TION OF THE LAW AS FOUND IN
CHAPTER 185 OF THE ACTS OF
THE THIRTY-FIFTH GENERAL
ASSEMBLY:
The Board of Parole, together with J. C.
Sanders, Warden of the Penitentiary at Fort
Madison, and A. F. Philpott, Physician of
said Penitentiary, met at Des Moines, Iowa,
April 15, 1914, called to order, and on motion
of J. E. Howe, the following preamble and
resolution was adopted:
Whereas, at a meeting of this board held
at Fort Madison, Iowa, on February 14,
1914, it was ordered that the operation of
vasectomy be performed by the physician of
said prison on the following named prisoners
confined in said Penitentiary, to-wit:
No. 10405 — Harry Delmar
No. 10406 — Rudolph Davis
No. 10409 — W. J. McArtor
No. 10414 — John Ryan
No. 10434 — Jake Mann
186
Detailed Review op Litigation — Iowa
No. 10440— Peter Stark
No. 10441— D. O. Martin
No. 10448— Ed Turnipseed
No. 10453— William O'Gara
No. 10455— S. H. Keeler
No. 10462— Fred Trask
No. 10464— Charles King
No. 10473— William Kinney
No. 10475— Charles Davis
No. 10477— Claude Brasher
No. 10478— David Dyer
No. 10481 — Thomas Burns
No. 10485— Charles Reide
No. 10491 — Joe Murphy
No. 10492 — Fred Carson
No. 10494 — John Singleton
No. 10497 — Oscar Carlson
No. 10499 — Frank Sanders,
all for the reason that each of said prisoners
had been twice convicted of a felony and for
that reason under the Act of the Thirty-
Fifth General Assembly of the State of Iowa
providing for sterilization of prisoners should
be sterilized; and,
Whereas, in each of said cases one of such
felonies had been committed since the taking
effect of said Act, and in each of said cases
one of the felonies of which the prisoner had
been convicted was committed before the
taking effect of said Act; and.
Whereas, the Attorney-General of Iowa
now has filed with this board his written
opinion, holding that the proper construction
of the provisions of said act which requires
that the operation of vasectomy should be
performed on every prisoner in the Peniten-
tiary of Iowa who has been twice convicted
of a felony, would require that both of the
crimes of which he was convicted must have
been committed since the taking effect of
said Act, and therefore does not apply in
any of the above named cases;
Therefore, resolved, that because of the
construction of said Act by the Attorney-
General of Iowa, we reconsider the motion
by which the operation of vasectomy was
ordered to be performed in each of the above
cases.
Moved by A! F. Philpott that the motion
made February 14, 1914, that the operation
of vasectomy be performed on
No. 10405 — Harry Delmar
No. 10406— Rudolph Davis
No. 10409— W. J. McArtor
No. 10414— John Ryan
No. 10434 — Jake Mann
No. 10440— Peter Stark
No. 10441— D. O. Martin
No. 10448 — Ed Turnipseed
No. 10453 — William O'Gara
No. 10455— S. H. Keeler
No. 10462 — Fred Trask
No. 10464 — Charles King
No. 10473 — William Kinney
No. 10475 — Charles Davis
No. 10477 — Claude Brasher
No. 10478— David Dyer
No. 10481 — Thomas Burns
No. 10485— Charles Reide
No. 10491 — Joe Murphy
No. 10492 — Fred Carson
No. 10494 — John Singleton
No. 10497 — Oscar Carlson
No. 10499 — Frank Sanders,
be laid on the table. The motion prevailed.
Moved by D. C. Mott that the board be
now adjourned, subject to the call of the
chairman. The motion prevailed.
The board adjourned.
(Signed) W. H. BERRY,
Chairman.
A. F. PHILPOTT,
Secretary.
A notice of appeal was filed by the Attor-
ney-General of the State of Iowa on August
19, 1914, which was followed by an order
signed by Judge Smith McPherson on
August 20, 1914, duly allowing the appeal.
f. Decision tif the District Coort of the
United States in and for the Southern
District of Iowa, Eastern Division.
No. 9-A. Equity.
RUDOLPH DAVIS, Complainant,
against
WILLIAM H. BERRY. JOHN F. HOWE,
DAVID C. MOTT, JAMES C. SAN-
DERS and AUSTIN F. PHILPOTT,
Defendants.
OPINION.
George B. Stewart of Fort Madison, Iowa,
for Complainant; George Cosson of Des
Moines, Iowa, Attorney-General of Iowa,
for Defendants.
Before Walter I. Smith, Circuit Judge;
John C. Pollock and Smith McPherson,
District Judges.
Smith McPherson, District Judge:
The complainant is a prisoner in the Iowa
penitentiary. Defendants Berry, Howe, and
Mott constitute the Iowa Board of Parole;
Sanders is the warden, and Philpott is the
physician of the penitentiary.
Detailed Review of Litigation — Iowa
187
The case is one of diversity of citizenship,
with federal questions presented by a Bill of
Equity with an application for a temporary
injunction to restrain defendants as state
officers from enforcing Chapter 187 of the
acts of the Thirty-fifth General Assembly
(1913), authorizing a surgical operation
called vasectomy on idiots, feeble-minded,
drunkards, drug fiends, epileptics, syphilitics,
moral and sexual perverts, and mandatory
as to criminals who have been twice con-
victed of a felony.
Complainant has been twice convicted of
a felony, one of which was prior to the
enactment of the statute in question (and
in another state), and the other since (in
this state), and for the latter he is now
imprisoned. The defendant Board of Parole
in February, 1914, made an order that the
operation should be performed upon certain
designated prisoners, including the complain-
ant. This action was brought by the com-
plainant for the purpose of enjoining each
and every' one of the defendants from sub-
jecting him to the operation. Since the action
was instituted the Board of Parole under a
written opinion of the attorney-general of
the state has rescinded its order, and they
and the prison physician say they will
observe such opinion. The opinion of the
attorney-general is based upon the proposi-
tion that the statute is ex post facto if either
of the convictions was for an offense com-
mitted prior to the enactment of the statute.
Complainant's counsel in argument conceded
the statute is not an ex post facto one.
The attorney-general was in error when
he advised the Board of Parole that the
statute in question is void by reason of it
being ex post facto, except only as to prison-
ers who have been twice convicted for
felonies committed since the enactment of
the statute. The statute under any con-
struction is not an ex post facto one. State
of Iowa ex. rel. Gregory vs. Jones, 128 Fed.
Rep. 626; Kelly vs. People, 115 111. 583 (4
N. E. 644); Commonwealth vs. Graves, 155
Mass. 163 (29 N. E. 579); Sturtevant vs.
Commonwealth, 158 Mass. 598 (33 N. E.
648) ; In re Miller, 68 N. W. 990 (Michigan) ;
Blackburn vs. State, SO Ohio State, 428 (36
N. E. 18) ; Moore vs. State of Missouri, 159
U. S. 673; Cooky's Constitutional Limita-
tions, 7th Ed. 382; State vs. Dowden, 137
Iowa, 573; Graham vs. West Virginia, 224
U. S. 616. He is not being subjected to the
operation for that which was by him done
prior to the enactment of the statute, but
because he voluntarily brings himself within
a class covered by the statute, and he does
this subsequent to the enactment of the
statute.
The attorney-general also advised the
Board of Parole that the statute should be
so construed as to be applicable only to
prisoners who have been twice convicted of
felonies committed since the enactment of
the statute. Section 36, Article III, of the
Iowa Constitution provides that a statute
shall take effect July 4th following its enact-
ment, or, if enacted at a special session, then
at the expiration of ninety days after
adjournment; or, in case of a declared emer-
gency, by the publication thereof. But the
attorney-general to maintain the proposition
that the law is ex post facto as applied to
one who was convicted the one time prior
to the statute is doing violence to the state
constitution by contending that the statute
would be effective only as to any prisoner
many years after its enactment.
The defendant Board of Parole by rescind-
ing the order subjecting complainant to the
surgical operation, and the defendant warden
and physician through the attorney-general
now insist that an injunction should not issue
because it will serve no purpose. There are
two answers to this: death, resignation, and
expiration of terms of office will bring other
men into the positions now held by the de-
fendants who may not entertain the same
views as these defendants. The opinion of
the attorney-general is advisory only and is
not at all binding on either these defendants
or their successors in office.
Again, the statute in question provides that
certain persons may be subjected to the
surgical operation; but the latter part of
Section 1 provides that such operations shall
be performed upon prisoners who have been
twice convicted of a felony, such as the com-
plainant.
It is the duty of an officer to follow the
mandates of the statute. Of course, every
officer must act at his peril under a statute
that another party claims to be unconstitu-
tional and void; but where a person will
suffer an irreparable injury if the statute is
carried out, the presumption is that such
statute will be observed and that an injunc-
tion should issue to enjoin the enforcement
of a void statute. Williams vs. Boynton, 147
N. Y. 436 (43 N. E. 184) ; Osborne vs. Blank,
9 Wheaton, 739, 840; 3 High on Injunctions
(4th edition). Section 310.
188
Dstailud Review op Litigation — Iowa
Complainant in his verified bill alleges that
the statute is in violation of the United States
Constitution in that it is in effect a Bill of
Attainder in that there is to be no indictment
or trial; that the statute abridges his privi-
leges/ and that he is denied the equal pro-
tection of the laws; that he is denied due
process of law; that the statute is in conflict
with the Iowa Constitution in that the
statute denies the inalienable right to enjoy
life, liberty and to pursue and obtain safety
and happiness; that there is no jury trial
awarded him, and that the statute provides
cruel and unusual punishment.
The case presents important questions.
Statutes like this are of recent years, the
first one upon the subject enacted less than
fifteen years ago. The question has been
before Appellate courts but twice. In one
ca^e, that of State of Washington vs. Feilen,
126 Pac. Rep. 75 (41 L. R. A., N. S., 418),
the statute was upheld. The court held that
the punishment was not cruel or unusual
in the constitutional sense. That case in-
volved a most heinous offense, that of the
ravishment of a female child, and the statute
provided that in addition to life imprison-
ment the jury and the court might determine
whether he should be subjected to the oper-
ation of vasectomy. So that on the question
now presented there was due process of law
in that the matter was judicially determined.
The other case, by the Supreme Court of
New Jersey, was that of Smith vs. Board of
Examiners, 88 Atl. Rep. 963. In that case
the operation was to be performed upon a
woman who was an epileptic, an inmate of a
state charitable institution, and that court
held that the statute was based upon an un-
reasonable police regulation and denied to
her and persons of her class the equal pro-
tection of the laws as guaranteed by the
Fourteenth Amendment.
The sole purpose of the operation is to
destroy the power of procreation. The oper-
ation as originally performed was that of
castration. In the twelfth century Henry
II. declared it treason for any person to
bring over any mandate from the pope or
any one in authority in church affairs. This
he made punishable as to secular clergymen
by the loss of their eyes and by castration.
Goldsmith's History of England, Volume 1,
page 88. In Weenis vs. United States, 217
U. S. 349, 377, the fact that castration was
once inflicted is recognized — and see the
case of Whitton vs, Georgia, 47 Georgia, 301.
There is a difference between the operation
of castration and vasectomy; castration
being physically more severe than the other.
But vasectomy in its results is much the
coarser and more vulgar. But the purpose
and result of the two operations are one and
the same.
When Blackstone wrote his C9mmenta
ries he did not mention castration as one of
the cruel punishments, quite likely for the
reason that with the advance of civilization
the operation was looked upon as too cruel
and was no longer performed. But each
operation is to destroy the power of pro-
creation. It is of course to follow the man
during the balance of his life. The physical
suffering may not be so great, but that is
not the only test of cruel punishment; the
humiliation, the degradation, the mental suf-
fering are always present and known by all
the public and will follow him wheresoever
he may go. This belongs to the dark ages.
As, of course, all persons concede that it
would be better for society if some men did
not beget children; diseased, deformed, men-
tally weak children and criminally inclined,
are brought into the world oftentimes to
their own shame and against the interest of
the public. But are they not at the mini-
mum? And must the marriage relation be
formed under these newly-conceived laws
based upon the brutalities of many centuries
since and be allowed to take the place of tht
marriage relation formed along the true
lines? Must the marriage relation be based
and enforced by statute according to the
teachings of the farmer in selecting his male
animals to be mated with certain female
animals only?
It is somewhat difficult to define with pre-
cision what is cruel and unusual punishment
in the constitutional sense. Usually the
length of imprisonment following a convic-
tion is within the discretion of the legislative
body, and we have an extreme case in O'Neil
vs. Vermont, 144 U. S. 323, in which the
judgment of the lower court was affirmed
and the statute upheld. But quite a per cent
of the bar of the country are of the opinion
that the dissenting opinion by Justice Field
(concurred in by Justice Brewer and Harlan)
was the stronger.
No doubt delegates to the conventions, in
providing against cruel punishment, had
largely in mind what Blackstone had then
recently written in volume 4, page 376, such
as being drawn or dragged to the place of
DETAILED Review oe Litigation — Iowa
189
execution, emboweling alive, cutting off the
hands or ears, branding on the face or hand,
slitting the nostrils, placing the prisoner in
the pillory, the ducking, the rack, and the
torture, and, as in Spanish countries, cruci-
fying. In a very few states of the Union
the whipping post has been retained as a
constitutional mode of punishment. But
it will be found that the courts in those
states have construed the statute thus im-
posing such punishment in the light of their
history, and what had been done aijd was
being done at the time of the adoption of
their constitution. No one can doubt but
that under our present civilization if castra-
tion were to be adopted as a mode of pun-
ishment for any crime, all minds would so
revolt that all courts without hesitation
would declare it to be a cruel and unusual
punishment. As we understand it, castra-
tion was never inflicted after the revolution
of 1688. So that if, as some now contend,
it is now competent for a legislature to
impose such punishment as existed by the
common law, the validity of the statute pro-
viding for castration could not be upheld
because that punishment was one imposed
back' of the time of the common law as,
generally speaking, it comes down to us.
In O'Neil vs. Vermont, 144 U. S. 323, and
Weems vs. United States, 217 U. S. 349, and
in re Kemler, 136 U. S. 436, all phases of the
question are so presented as to leave nothing
further to be said.
While it is true that there are differences
between the two operations of castration and
vasectomy, and while it is true that the effect
upon the man would be different in several
respects, yet the fact remains that the pur-
pose and the same shame and humiliation
and degradation and mental torture are the
same in one case as in the other. And our
conclusion is that the infliction of this
penalty is in violation of the Constitution
which provides that cruel and unusual pun-
ishment shall not be inflicted.
This statute not only allows but com-
mands the operation qf vasectomy to be per-
formed upon all twice convicted of a felony.
A felony in Iowa is not only murder, arson,
rape, counterfeiting, and other serious crimes
known as felonies at the common law, but
they have been much extended under the
Iowa statute, and some things are now
felonies which until recently were misde-
meanors with trials before a justice of the
peace, or else no crime at all; wife abandon-
ment, cutting electric light wires, breaking
an electric globe, obstructing highway, un-
fastening a strap in a harness, and other
things. So that if a person commits two or
more of these, he is to be subjected to the
operation if this statute is enforced.
And it is of no importance in argument
whether the prison physician does this on
his own motion or under an order of the
State Board of Parole. The hearing is by an
administrative board or officer. There is no
actual hearing. There is no evidence. The
proceedings are private. The public does
not know what is being done until it is done.
Witnesses are not produced, or if produced
they are not cross-examined. What records
are examined is not known. The prisoner is
not advised of the proceedings until ordered
to submit to the operation. And yet in many
cases there will be involved a serious con-
troverted question of fact. The records of
two convictions may show the same name
of the party or parties convicted; but there
are many men of the same name, but which
is no proof that the person in the one case
is the same person convicted in the other
case. It is common knowledge that many
prisoners take assumed names. Who is to
determine whether the various names repre-
sent one and the same person? And if one
of the convictions was in another state,- the
question will arise whether it was for a
felony.
These inquiries that must be held in the
open, with full opportunities to present evi-
dence and argument for and against. To
uphold this statute it must be affirmed that
the Board of Parole or prison physician
must hear the evidence and examine laws of
other states without«notice and in the prison-
er's absence and determine these questions.
And if determined adversely, the prisoner
has no remedy but must submit to. the
operation.
In the case at the bar, the hearing was a
private hearing, and the prisoner first knew
of it when advised of the order. Due process
of law means that every person must have
his day in court, and this is as old as magna
charta: that sometime in the proceedings he
must be confronted by his accuser and given
a public hearing. Or as was stated in Leeper
vs. Texas, 139 U. S. 642:
"Law, in its regular course of administra-
tion through courts of justice, is due process,
and when secured by the law of the state
the constitutional requirement is satisfied."
Under the habitual criminal laws of the
state, if a prior conviction is relied on, the
190
Detailed ReviBw op Litigation — Iowa
same must be pleaded and established by the
evidence. But we have cases, this one in-
cluded, in which the prior conviction has not
been judicially established. But in Hayes
vs. Missouri, 120 U. S. 68, it was said that
due process of law and the equal protection
of the laws were secured if the laws operated
on all alike and that all persons subject to
the laws are treated alike under the limita-
tions imposed. And the same holding was
made in Duncan vs. Missouri, 153 U. S. 377.
And see Lowe vs. Kansas, 163 U. S. 88;
Jones vs. Brim, 15 U. S. 184; Magoun vs.
Illinois Trust, 170 U. S. 294; Railroad vs.
Matthews, 174 U. S. 105.
The cases are numerous and without con-
flict as to such holdings, and further citations
need not be made.
But assuming that the prior convictions
all appear of record, and assuming there is
no conflict in the testimony and no difficulty
in reaching the conclusion, but little or no
advance is made in determining the ques-
tion. If it be said that the statute aiito-
matically decides the question and nothing
remains for the prison physician to do but
to execute that which is already of record,
then the statute becomes a Bill of Attainder.
One of the rights of every man of sound
mind is to enter into the marriage relation.
Such is one of his civil rights, and depriva-
tion or suspension of any civil right for past
conduct is punishment for such conduct, and
this fulfills the definition of a Bill of Attain-
der, because a Bill of Attainder is a legisla-
tive act which inflicts punishment without a
jury trial, as is fully discussed and held in
the case of Cummings vs. Missouri, 71 U. S.
377, The Federalist, ISTo. 44, by Madison;
Justice Samuel F. Miller on the Constitu-
tion, 584; Watson on the Constitution, 733-
738.'
We hold ith« statute to be void, and unite
in holding that"a"T^mpqrary writ of injunc-
tion should be issued as grayed.
Keokuk, Iowa, June 24} 1914.
Smith, Circuit Judge« concurring:
The foregoing opinion is supported by a
wealth of historical and other references and
I do not wish to dissent from any portion of
it. But the Iowa law does not provide for a
judicial investigation of the identity of the
prisoner with the one previously convicted
of a felony as did the law in Washington
construed in State vs. Feilen, referred to in
the foregoing opinion. The Fourteenth
Amendment to the Federal Constitution
provides that no state shall deprive any
person of life, liberty or property without
due process of law. It seems to manifest
to me that the law which provides that such
operation (vasectomy or ligation of the
Fallopian tubes) shall be performed by the
physician of the institution or one selected
by him upon any convict or inmate who has
twice been convicted of a felony deprives
the party in question of due process of law
that it can scarcely be discussed. Suppose a
person- had been twice convicted of a felony
and has served his entire time and should
subsequently be an inmate of the peniten-
tiary unconvicted of any crime, but simply
held there for safe keeping, this law in its
strictness would require the prison physician
to perform the operation upon him in person
or by some person selected by such physi-
cian. It seems to me that the victim of this
operation is so clearly deprived under this
statute of due process of law that an injunc-
tion must issue, and I therefore express no
opinion upon the other interesting questions
presented.
(Endorsed:) Filed June 24, 1914. Wm. C.
McArthur, Clerk, by Frank Wahlgren,
Deputy.
g. Order for Temporary Injunction.
IN THE DISTRICT COURT OF THE
UNITED STATES IN AND FOR THE
SOUTHERN DISTRICT OF IOWA,
EASTERN DIVISION.
No. 9-A. Equity.
RUDOLPH DAVIS, Complainant,
against
WILLIAM H. BERRY, JOHN J. HOWE,
DAVID C. MOTT. JAMES C. SAN-
DERS, and AUSTIN F. PHILPOTT,
Defendants.
ORDER.
This case was heretofore presented by an
application of complainant for a temporary
injunction. Thereupon the resident judge
of said court by written order designated
Walter I. Smith, one of the United States
Circuit judges for this, the Eighth circuit,
and John C. Pollock, the United States Dis-
trict judge for the District of Kansas, to sit
with and assist him in the determination of
said application for- a temporary injunction
herein.
After said designations had been made and
made of record herein, the said application
came on for hearing in open court at
Keokuk, Iowa, viz., April 17, 1914, the com-
Detaii,ed Review oi Litigation — Iowa
191
plainant appearing by George B. Stewart,
Esq., his solicitor, and the same defendants
all appearing by George Cosson, Esq., attor-
ney-general of Iowa.
And after full argument the said applica-
tion was fully submitted on the said applica-
tion and the pleadings and was by the court
taken under advisement.
And now at this time the court being fully
advised, files a written opinion herein with
a concurring opinion, each and both of which
are now ordered of record and made a part
hereof.
And it is further ordered that a temporary
writ of injunction issue under the seal of this
court restraining and enjoining the. said
William H. Berry, John F. Howe, and David
C. Mott, members of and composing the
Iowa State Board of Parole; James C. San-
ders, the warden of the Iowa State Peniten-
tiary at Fort Madison, Iowa, and Austin F.
Philpott, the physician of said penitentiary,
and .the successors in office of each and every
one of said officers aforesaid from perform-
ing the operation of vasectomy on the said
complainant, the Iowa Statute Chapter 187,
Acts of the Thirty-fifth General Assembly,
Laws of Iowa, being unconstitutional, null
and void.
And this order and the whole thet'eof will
be and remain in full force until final hearing.
Witness our official signatures this June
34th, A. D. 1914.
(Signed) WALTER I. SMITH,
United States Circuit Judge.
(Signed) JOHN C. POLLOCK,
United States District Judge.
(Signed) SMITH McPHERSON,
United States District Judge.
(Endorsed:) Filed June 34th, 1914. Wm.
C. McArthur, Clerk, by Frank Wahlgren,
Deputy.
3. UNITED STATES SUPREME
COURT.
January 15, 1917. The United States
Supreme Court reversed the decision of June
34, 1914, of the District Court, because mean-
while (July 4, 1915) Iowa repealed the Act
of April 19, 1913, and enacted a new (the
third) sterilization statute.' (See Transcript
of Record. Supreme Court of the United
States, October Term, 1916, No. 47. Filed
October SO, 1914, No. 34,409.) (343 U. S.
468.)
PRINCIPAL DOCUMENTS.
a. Brief for Plaintiffs in Error, filed with
the Supreme Court of the United States on
August 30, 1916, by George Cosson, Attor-
ney-General of Iowa.
Statement of the Case.
Statute.
Errors Relied Upon.
I.
The court erred in holding that it had
jurisdiction of the subject matter involved
in this cause.
II.
The court erred in holding that Chapter
187, Acts of the Thirty-fifth General As-
sembly of Iowa, applied to all convicts now
confined in the penitentiary of the State of
Iowa who have been twice convicted of
felony, even though such convicts have not
been twice convicted of felony within the
State of Iowa subsequent to the enactment
of said chapter.
III.
The court erred in holding that Chapter
187, Acts of the Thirty-fifth General Assem-
bly of Iowa, applied to all convicts now
confined in the penitentiary of the State of
Iowa who had been twice convicted of
felony, even though one of said convictions
was in a state other than the State of Iowa,
and even though one of such convictions
occurred prior to the time said Chapter 187
became a law.
IV.
The court erred in overruling and disre-
garding the opinion of the Board of Parole
of the State of Iowa and of the attorney-
general of the State of Iowa in their interpre-
tation of Chapter 187, Acts of the Thirty-
fifth General Assembly of the State of Iowa,
holding that said chapter only applied to
those convicts now confined in the peniten-
tiary of the State of Iowa who had been
twice convicted of felony in the State of
Iowa subsequent to the going into effect of
said Chapter 187.
V.
The court erred in holding that the facts
as shown by the record presented such a
state of facts as would entitle complainant
to a temporary injunction or to any other
relief.
VI.
The court erred in passing upon the con-
stitutionality of Chapter 187, Acts of the
Thirty-fifth General Assembly of Iowa.
VII.
The court erred in holding Chapter 187,
Acts of the Thirty-fifth General Assembly
unconstitutional and void.
192
DETAII.ED Review of IvITigation — Iowa
VIII.
The court erred in not dismissing plain-
tiff's complaint as prayed for by defendants
in their motion to dismiss said Bill of Com-
plaint.
IX.
The court erred in issuing the temporary
injunction and restraining order as shown
by the record.
X.
The court erred in entering the order and
decree, holding the said Chapter 187 uncon-
stitutional and in entering the temporary
injunction and restraining order.
ARGUMENT.
The court erred in granting a temporary
injunction.
It is such a fundamental and cardinal
principle of la!w that no one is entitled to a
temporary injunction unless he is about to
suffer irreparable injury and that such injury
is imminent, and that he has no legal remedy,
that a discussion of the proposition or a
citation of authorities is not only unneces-
sary, but seems almost a reflection upon the
court.
This is especially true where the defendant
in the presence of the chancellor or court
proposes to do what the plaintiff asks in his
bill.
Behn vs. Young, 21 Ga. 207 at 213.
And the mere fact that the act is unconsti-
tutional does not suffice to warrant the court
in granting the injunction unless it is shown
that the injury is irreparable, the danger
imminent and that no legal remedy is
available.
Shelton vs. Piatt, 139 U. S., 591;
Allen vs. Pullman Palace Car Co., 139
u. s. esa;
Pacific Express Co. vs. Siebert, 142 U. S.
339;
Pittsburgh, etc., Ry. Co. vs. Board of
Public Works, 172 U. S., 32;
Arkansas Building and Loan Association
vs. Madden, 176 U. S., 269.
There is not one discordant note in the
unbroken line of authorities and this is true
not only with reference to this court but the
inferior federal courts, the state courts and
the text writers.
The learned authority on "Injunctions"
(see Section 1339-a of the 4th Edition of
High on Injunctions) states the doctrine as
follows;
"Where relief is sought against the en-
forcement of an unconstitutional statute,
either state or federal, the unconstitutionality
of the law is not alone sufficient to justify
the granting of the writ, but irreparable
injury must also be alleged and clearly
proven, or some other special circumstance
must be shown which brings the case under
some recognized head of equity jurisdiction.
And where the plaintiff fails to make such a
showing, the relief will be denied and he will
be left to his remedy at law.''
The court in the case of Bigelow vs. Hart-
ford Bridge Co., 14 Conn. 566, held that a
state of things from which the plaintiff
apprehends injurious consequences to him-
self, but which neither actually exists nor is
threate'ned by the defendants, nor is inevi-
table, is not a sufficient ground for an in-
junction. That "it is obviously not fit that
the power of the court should be invoked
in this form for every theoretical or specu-
lative violation of one's rights."
And in the very well considered case of
The People of the State of New York, com-
plainants, vs. Canal Board of the State of
New York, respondents, 56 N. Y. 391, the
court said:
"It is not enough that the canal board is
a public body composed of state officers,
charged with important duties affecting the
public, and that they may act in hostility to
the public interests under a void law, or that
the attorney-general is apprehensive that
tney may so act; if it is not made to appear
that they are acting or threatening to act,
that is, if a state of facts does not actually
exist which calls for relief by injunction, it
will not be granted. * ♦ * Injury, material
and actual, not fanciful or theoretical, or
merely possible, must be shown as the neces-
sary or probable results of the action sought
to be restrained."
It is equally fundamental that if a change
of circumstances after the commencement of
the suit relieves the defendant of the imme-
diate injury, no temporary injunction should
issue.
Behn vs. Young, 21 Ga. 207;
Foster's Federal Practice, Vol. 1, p. 751;
In Re Jackson, 9 Fed. 493;
In Re Pitts, 9 Fed. 642.
So also must the injunction be denied
where defendant states that he has no inten-
tion of doing the acts in question, and there
is not a substantial or a preponderance of
the evidence which shows to the contrary.
Benton vs. Budd, 120 Cal. 329;
Lambert vs. Alcorn, 144 111. 313;
Whalen vs. Dalahsmutt, 69 Md. 860.
Detailed ReviEw of Litigation — Iowa
193
This proposition was announced by the
Illinois court notwithstanding four witnesses
testified to an assertion of the defendant to
the contrary.
Lied vs. Henderson, 991 111. 2S2.
The plain facts are that the court's opinion
is based upon a wholly erroneous conception
of the record in the case. The very basis of
the granting of the temporary injunction is
founded upon misconceptions. The court in
its opinion (see page 33 of the transcript)
falls into the first error when he states:
"The opinion of the attorney-general is
based upon the proposition that the statute
is ex post facto if either of the convictions
was for an offense committed prior to the
enactment of the statute.''
And again the court mis-stated the opinion
of the attorney-general when he states
(pages 33 and 34 of the transcript) :
"The attorney-general was in error when
he advised the Board of Parole that the
statute in question is void by reason of it
being ex post facto, except only as to prison-
ers who have been twice convicted for
felonies committed since the enactment of
the statute."
The opinion of the attorney-general was
based upon no such proposition, and the
attorney-general gave no such opiiuon either
official or unofficial, oral or in writing.
Before this controversy arose and before any
suit was instituted, the Board of Parole sub-
mitted to the attorney-general a request for
an opinion as to whether the act in question
applied to all persons in the penitentiary who
had been twice convicted of a felony, and
regardless of whether their convictions, that
is to say, both convictions, were prior to the
passage of the act, and it was in response
to that request for an opinion that the attor-
ney-general transmitted to the said Board of
Parole an official opinion with reference to
whether the act applied to all prisoners con-
fined in the penal institutions of the state
who were convicted prior to the taking effect
of the act in which he said:
"The question is not free from difficulty.
In this question is involved (a) the intention
of the legislature, that is to say, whether or
not the legislature intended the act to apply
to persons confined or convicted prior to the
taking eflfect of the act; and (b) if the legis-
lature did so intend, is the act constitutional?
"Assuming then that the legislature in-
tended the act to apply to persons convicted
or sentenced prior to the taking effect of said
act, the same would be unconstitutional as
being ex post facto if it may be considered
as a means of punishment or even if it con-
tained directly an element of punishment.
If, however, it is looked upon wholly as a
sanitary and police measure in the interest
of society at large, and directly in the interest
of the possible offspring of the persons re-
ferred to in the act, then it would clearly not
be unconstitutional." (Transcript, pages 26
and 37.)
The attorney-general then had under con-
sideration whether the act contemplated the
wholesale operation of every man in the
penal institutions of the state who had been
twice convicted of a felony, the convictions
taking place prior to the passage of the act,
and even then it was clearly pointed out that
unless the act was punitive in its nature it
would not be ex post facto assuming that
both convictions were had prior to the pass-
age of the act.
What the attorney-general held in that
opinion was that the legislature never in-
tended the law to apply to persons who were
convicted prior to the passage of the act.
Undoubtedly every one would concede the
soundness of the opinion of the attorney-
general, to-wit: That if the law applied to
persons convicted prior to the passage of the
act, both convictions I mean, and second
that the act was punitive in its nature, it
would be ex post facto. But as before
stated, the attorney-general held that the law
never contemplated that persons previously
convicted should be subject to the provi-
sions of the act in question.
Subsequently, however, and without fur-
ther consultation with the attorney-general,
the Board of Parole assumed that one con-
viction subsequent to the passage of the act
would bring the prisoner under the purview
of the statute and proceeded to make the
order including the defendant herein. After
the institution of the suit by the plaintiff in
error, the Board of Parole then submitted to
the attorney-general the question as to
whether both convictions must be had subse-
quent to the passage of the act.
In response to that request, the attorney-
general called attention to his first opinion
that the legislature never intended the act
to apply to persons convicted prior to the
taking effect of the act, and that the precise
question as to whether both convictions
should be subsequent to the taking effect of
the act was not then considered, and con-
cluded as follows:
194
Detahed Review of Litigation — Iowa
"It will be noticed that the language used
by the General Assembly is general in its
nature, and after a careful consideration of
the act, I am of the opinion that the act
should be so construed as to require that
both convictions of a felony must be subse-
quent to the passage of the act. This being
true, and there now being no person con-
fined in the penitentiary who has been twice
convicted of felony since the passage of
Chapter 187, Acts of the Thirty-fifth General
Assembly, it follows that the order made by
the Board of Parole designating Rudolph
Davis and others should be cancelled and
that no prisoner should be designated by the
commission named upon whom the operation
should be performed who has not been twice
convicted of a felony subsequent to the pass-
age of the act." (Exhibit B, Transcript
pages 37-28.)
Read the copy of the official opinion which
was the basis of the board's action in can-
celling the orders, it being designated as
Exhibit B and copied in full on pages 37 and
38 of the official transcript, and not a line
or suggestion is made with reference to the
act being ex post facto if the last conviction
were had subsequent to the passage of the
act.
The attorney-general was perfectly fa-
miliar with the well settled doctrine that one
conviction subsequent to the passage of the
act was sufficient to relieve the act in ques-
tion of any objection upon the ground of
being an ex post facto act. This question
has been passed upon numberless times in
those states having habitual criminal acts.
See Revised Laws, Mass., 1902, Vol. 2, Sec.
21, Chapter 220;
McDonald vs. Mass., 180 U. S. 311;
Graham vs. West Virginia, 224 U. S. 616.
There are some very well reasoned cases
by the Massachusetts courts, but in the
Massachusetts statutes it made it very clear
that one conviction subsequent to the taking
effect of the law would be sufficient and in
the Massachusetts statutes it was also desig-
nated that a previous conviction in that or
any other state, which was punished by a
sentence in the penitentiary of a given time
should satisfy the requirements of the act;
whereas the Iowa statute is merely general
in its terms, does not say whether the con-
victions must both be in Iowa, and thi,? in
addition to the fact, as before stated, that
what is a penitentiary sentence in one state
calls for only an insignificant punishment in
another state, prompted the attorney-general
to hold that the Iowa statute drawn in such
general language, without any reference
where the convictions should be had, should
be construed as to require that both convic-
tions should be subsequent to the passage of
the act.
This construction is for the purpose of
effectuating the intent of the legislature and
not because of any supposed unconstitution-
ality of the act, it being well known that a
more severe punishment is justified against
one whose previous conduct is bad than
against another whose previous conduct has
been good.
If the court had taken the trouble to have
read the opinions of the attorney-general, it
would not have fallen into such grievous
error..
The court was also in error in holding
that there was no duty upon the adminis-
trative officers to follow the opinion of the
attorney-general. The official opinion of the
attorney-general, when called for by a state
department and received upon a matter of
official business, is binding until overruled by
the court, the legislature or some other offi-
cial manner.
The attorney-general of the State of Iowa
is a constitutional officer. (See Article V,
Section 12 of the Code of Iowa.)
The powers of the several attorneys-
general of the states are similar in their
respective spheres to the powers of the at-
torney-general of the United States, and the
duties and authority of the attorney-general
of the United States and the attorney-
general of each state are similar to the pow-
ers of the chief law officer of England, where
the attorney-general is and has been from
the time the memory of man runneth not to
the contrary the chief law officer of the
government.
3 Am. & Eng. Enc of Law, page 476;
Enc. Laws of England, Vol. 1, page 624;
4 Reeves Hist. Eng. Law, Chapter 26,
page 161;
People vs. Min«r, 2 Lans., 396-398.
In the case of the People vs. Miner, 2
Lans., 396 on page 399, the Supreme Court
of New York held that the attorney-general
has all "the powers belonging to the office
at common law and such additional powers
as -the legislature has seen fit to confer upon
him."
To the same effect see State ex rel Young
vs. Robinson, 101 Minn. 277.
Detailed Review oe Litigation — Iowa
195
Section 208, Supplemental Supplement,
1915, of the Code of Iowa, provides in part
that "There shall be at the seat of govern-
ment a department to be known as the de-
partment of justice, and the attorney-general
shall be the head thereof."
And Section 208 provides in part that "He
shall give his opinion in writing upon all
questions of law submitted to him by the
General Assembly, or either house thereof,
the governor, lieutenant governor, speaker
of the house * * * and to the heads of any
other state departments now existing or
hereafter created."
Both as a matter of law and as a matter
of custom, the state department of the
several states and the departments of the
federal government follow the opinions of
the attorney-general until they are overruled
by some superior authority.
We then have this situation: the attorney-
general in an official opinion held that the
law did not apply to the defendant in ques-
tion or any person in the penitentiary,
because neither the defendant nor any other
person had been twice convicted of a felony
subsequent to the passage of the act. The
Board of Parole in a formal, official resolu-
tion cancelled their previous order and de-
clared their intention of being governed by
the official opinion of the attorney-general.
In addition to that the warden who has
actual charge of the penitentiary, and the
prison physician, who would have personally
directed the operation in the event that one
was performed, both declared under oath
that neither at the time nor at any time in the
future would the operation be performed,
and that the official opinion of the attorney-
general would be followed, and the attorney-
general on behalf of the state filed in court
his resistance saying that no action either
at the time or at any time in the future
would ever be taken pursuant to the provi-
sions of said act.
Considering then both the facts and the
law, there was not one substantial reason
for the court granting this temporary in-
junction. The court entirely misconceived
the position taken by the attorney-general.
There was no threatened injury, either
present or prospective. As soon as the Board
of Parole discovered they had wrongfully
construed the statute, they immediately can-
celled their order, the Board qi Parole, the
warden and the prison physician all an-
nounced in the most solemn manner that
they would follow the opinion of the attor-
ney-general and had no intention at the time
or at any time in the future of performing
said operation. And in spite of the fact that
a temporary injunction or interlocutory
decree is issued only for the purpose of
holding matters in statu quo until there can
be a hearing on the merits of the case, the
court granted a temporary injunction.
In our dual form of government, and in
view of the state and interstate nature of our
commerce, in the very nature of things, this
court and inferior federal courts must have
authority to hold statutes unconstitutional,
but as this court has said over and over
again, this will never be done unless the
statute is so clearly and palpably unconstitu-
tional as to leave no reasonable doubt.
This court has zealously guarded the
rights of the states but so great has been
the abuse of the inferior federal courts that
almost every important state statute cover-
ing fundamental reforms to meet industrial
changes and additional abuses growing up
under our modern civilization, has been held
unconstitutional by some inferior federal
court. It was because of this unwarranted
usurpation of power that action was taken
by the National Association of Attorneys-
General looking toward congressional relief,
and in response to this action congress
passed an act forbidding the granting of an
injunction against any state officer upon the
ground of the unconstitutionality of a state
statute unless three judges were sitting, one
of whom must be an associate justice of the
Supreme Court of the United States or a
United States Circuit judge. (Act of Con-
gress, June 18, 1910, Section 17.)
Section 266, 61st Congress, U. S. Statutes
at Large, p. 1162.
Ex Parte Metropolitan Water Co., 220
U. S. 539.
The court therefore having erred in grant-
ing the temporary injunction, it is unneces-
sary to consider the constitutionality of the
act in question upon its merits.
The state frankly admits that there is seri-
ous doubt as to the constitutionality of the
act; however, since no act of a legislature
should be stricken down as unconstitutional
unless it is clearly so beyond all reasonable
doubt, we contend that in any event the act
was not so clearly unconstitutional as to
warrant the court in striking it down as
being in contravention of the fundamental
law. Especially is this true on a hearing
196
Detailed RbviEw oi? Litigation — Iowa
upon a temporary injunction. We, there-
fore, submit the following in support of the
constitutionality of the act:
PART II.
It is the contention of the plaintiffs in
error that the lower court erred in holding
that the statute in question was unconstitu-
tional, deciding that the statute was a Bill
of Attainder, provided for the infliction of
cruel and unusual punishment, and deprived
persons of life, liberty or property without
due process of law.
While there has been a great deal of dis-
cussion during the past few years in the
newspapers and in legal, scientific and other
periodicals concerning the subject of sterili-
zation of criminals and defectives by vasec-
tomy, the question of the constitutionality
of statutes of this kind has not been passed
upon by this court. The only reported deci-
sions in which the matter has been judicially
discussed are in the cases of:
State vs. Feilen, 70 Wash. 65; 126 Pac.
Rep. 75;
Smith vs. Board of Examiners, 85 N. J.
Law, 46; 88 Atl. Rep. 963.
The object of the performance of this
operation is to prevent the procreation of
criminals, defectives and other degenerates,
and this is based upon the theory that crimi-
nality or weakness of mind is inheritable,
and should be resorted to as a protection to
society against the generation of moral de-
generates and mental incompetents. If
habitual criminality connotes inheritable de-
generacy as claimed by the most eminent
scientific and legal writers, vasectomy of
habitual criminals should be upheld as a
measure for the protection of society against
the procreation of criminals and degenerates
without regard to the aspect of punishment.
In fact, the sterilization of criminals and
degenerates by vasectomy is not a punish-
ment at all inflicted upon the person sub-
jected to the operation but is a measure
resorted to for the protection of society.
The Supreme Court of the State of Wash-
ington, in the case of State vs. Feilen, 70
Wash., 65, 126 Pac. Rep. 76; 41 L. R. A.
(N. S.) 418, in upholding the constitutional-
ity of the statute of that state providing for
the sterilization of criminals by means of
vasectomy, says:
"On the theory that the modern scientific
investigation shows that idiocy, insanity,
imbecility and criminality are congenital and
hereditary, the legislatures of California (Stat.
1909, p. 1093, Chap. 720), Connecticut (Pub.
Laws 1909, Chap. 209), Indiana (Laws 1907,
Chap. 315), Iowa (Laws 1911, Chap. 129),
New Jersey (Laws 1911, Chap. 190), and
perhaps other states, in the exercise of the
police power, have enacted laws providing
for the sterilization of idiots, insane, imbe-
ciles and habitual criminals. In the enforce-
ment of these statutes vasectomy seems to
be a common operation. Dr. Clark Bell, in
an article on hereditary criminality and the
asexualization of criminals, found at page
134, Vol. 37, Medico-Legal Journal, quotes
with approval the following language from
an article contributed to Pearson's Maga-
zine for November, 1909, by Warren W.
Foster, senior judge of the Court of General
Sessions of the Peace of the County of New
York:
" 'Vasectomy is known to the medical pro-
fession as "'an office operation," painlessly per-
formed in a few minutes, under an anesthetic
(cocaine), through a skin cut half an inch
long, and entailing no wound infection, no
confinement to bed. "It is less serious than
the extraction of a tooth," to quote from Dr.
William D. Belfield, of Chicago, one of the
pioneers in the movement for the steriliza-
tion of criminals by vasectomy, an opinion
that finds ample corroboration among practi-
tioners. * * * There appears to be a wonder-
ful unanimity of favoring opinion as to the
advisability of the sterilization of criminals
and the prevention of their further propaga-
tion. The Journal of American Medical
Association recommends it, as does the Chi-
cago Physicians' Club, the Southern District
Medical Society, and the Chicago Society of
Social Hygiene. The Chicago Evening
Post, speaking of the Indiana law, says that
it is one of the most important reforms
before the people, that "rarely has a big
thing come with so little fanfare of trum-
pets." The Chicago Tribune says that "the
sterilization of defective and habitual crimi-
nals is a measure of social economy.'' The
sterilization of convicts by vasectomy was
actually performed for the first time in this
country, so far as is known, in October,
1899, by Dr. H. C. Sharp, of Indianapolis,
then physician to the Indiana State Reforma-
tory, at JelTersonville, though the value of
the operation for healing purposes had long
been known. He continued to perform this
operation with the consent of the convict
(not by legislative authority) for some years.
Influential physicians heard of his work, and
Detaii^ed Review of Litigation — Iowa
197
were so favorably impressed with it that
they indorsed the movement, which resulted
in the passage of the law now upon the Indi-
ana statute books. Dr. Sharp has this to say
of this method of relief to society: "Vasec-
tomy consists of ligating and resecting a
small portion of the vas deferens. This oper-
ation is, indeed, very simple and easy to per-
form; I do it without administering an anes-
thetic, either general or local. It requires
about three minutes' time to perform the
operation, and the subject returns to his
work immediately, suffers no inconvenience,
and is in no way impaired for his pursuit of
life, liberty and happiness, but is effectively
sterilized.' "
It is apparent from the reading of the
foregoing opinion upon the constitutionality
of the Washington statute that the sterihza-
tion of criminals by means of vasectomy is
not a cruel punishment under our constitu-
tional restriction, but is a measure for the
protection of society and, is in fact, no pun-
ishment at all. The constitutional inhibition
against cruel and unusual punishments has
reference to those ancient, horrible, inhuman,
and barbarous inflictions and punishments
like the whipping post, the pillory, burning
at the stake, breaking on the wheel, quarter-
ing the culprit, cutting off the nose, ears or
limbs, or strangling the victim to death, and
not to statutes enacted in these advanced
days of civilization providing for the sterili-
zation of habitual criminals and defectives
by the painless operation of vasectomy In
order to protect society against procreation
of criminals and degenerates.
It is difficult to define with precision just
what is meant, in a constitutional sense, by
the words "cruel and unusual punishment."
On this subject we respectfully call the
court's attention to the following authorities:
O'Neill vs. Vermont, 144 U. S. 323;
In Re O'Shea, 11 Cal. App. 575; 105 Pac.
779;
Cooley, Const. Lim., 7th ed., pp. 471
et seq.;
State vs. McCauley, 15 Cal. 429;
Whitten vs. State, 47 Ga. 297;
State vs. Williams, 77 Mo. 310;
Aldridge vs. Com., 4 Va. Cas. 447;
Wyatfs Case, 6 Rand. (Va.) 694;
In Re Kemmler, 136 U. S. 436, 444, 34 L.
ed. 519, £23, 10 Sup. Ct. Rep. 930;
Wilkerson vs. Utah, 99 U. S. 130, 135, 25
L. ed. 345, 347;
Cooley, Const. Lim. 4th ed. 408;
Wharton, Crim. Law, 7th ed.. Sec. 3405;
Hobbs vs. State, 133 Ind. 404; 18 L. R.
A. 774; 32 N. E. 1019;
Weems vs. United States, 217 U. S. 349,
54 L. ed. 450, 12 Sup. Ct. Rep. 693.
The trial court in deciding this cause on
the application of the defendant in error (the
complainant) for a temporary injunction held
that the statute in question was a Bill of
Attainder. In this the court was in error.
A Bill of Attainder is a legislative act which
inflicts punishment on a person without a
judicial trial.
Cummings vs. State of Missouri, 71 U. S.
277 at 323.
Can it be said that the painless operation
of vasectomy which is approved by the most
eminent scientific and legal writers, is a pun-
ishment? It is, indeed, no punishment at
all. It is simply a means resorted to, in the
case of habitual criminals, idiots, lunatics and
other defectives, as a measure for the pro-
tection of society against the procreation of
moral delinquents and mental incompetents.
If then the statute in question is not
properly considered punitive in its nature,
but wholly in the interest of society, the
defendant has not been deprived of any of
his fundamental rights without due process
of law. If the plaintiff in error considers
the statute mischievous in its tendencies, the
answer is made by this court in the case of
Atkins vs. Kansas, 191 U. S. 223, wherein
the court said: „
"So, also, if it be said that a statute like
the one before us is mischievous in its ten-
dencies, the answer is that the responsibility
therefor rests upon legislators, not upon the
courts. No evils arising from such legisla-
tion could be more far-reaching than those
that might come to our system of govern-
ment if the judiciary, abandoning the sphere
assigned to it by the fundamental law, should
enter the domain of legislation, and upon
grounds merely of justice or reason or wis-
dom annul statutes that had received the
sanction of the people's representatives."
We submit that even on a permanent hear-
ing the court would not be warranted in
granting an injunction, but in view of the
official opinion of the attorney-general, the
sworn statement of the warden and prison
physician, and the official action of the Board
of Parole, no reasonable ground whatever
existed for the granting of the temporary
injunction.
198
DfiTAiL^D RkviEw of Litigation — Iowa
It was this very abuse in the granting of
temporary injunctions which necessitated
congressional action. It is significant to note
that whereas it requires three judges to sit
in considering the granting of a temporary
injunction, two of whom must concur, one
judge alone may hear the case upon its
merits and grant a permanent injunction.
Seaboard Air Line Ry. vs. R. R. Com.
of Ga., 213 Fed. 27 at 29.
In that case the court said: "There is no
requirement in the Judicial Code, Section
266, that three judges should hear the case
when submitted for final decree on the plead-
ings and evidence. The three judges are
only required to pass on the question oi
granting the interlocutory injunction."
The decision of the lower court should be
reversed, the order granting the temporary
injunction should be annulled and the tempo-
rary injunction dissolved.
Respectfully submitted,
GEORGE COSSON,
Attorney-General of Iowa,
For Plaintiffs in Error.
ROSS R. MOWRY,
Of Counsel.
b. Supplementary Brief.
On December 24, 1916, the attorney-
general of Iowa filed the following supple-
mentary brief with the Supreme Court:
c. Decision of the Supreme Court of the
United States.
IN THE SUPREME COURT OF THE
UNITED STATES.
October Term, 1916.
No. 47.
WILLIAM H. BERRY, JOHN E. HOWE,
and D. C. MOTT, constituting the Board
of Parole of Iowa, et al..
Plaintiffs in Error.
vs.
RUDOLPH DAVIS,
Defendant in Error.
APPEAL FROM THE DISTRICT
COURT OF THE UNITED STATES
FOR THE SOUTHERN DIS-
TRICT OF IOWA.
SUPPLEMENTAL BRIEF ON BEHALF
OF PLAINTIFF IN ERROR.
STATEMENT OF THE CASE.
On the 4th day of December, 1916, this
court made an order directing attention to
the fact that Chapter 19-B, Supplement to
the Code, 1913, Section 3600-p, et seq., was
repealed and re-enacted. See Chapter 19-B,
Supplemental Supplement, 1915, 8600-sl to
2600-S5, inclusive, page 238 of said Supple-
mental Supplement to the Iowa Code, 1915,
and gave permission to the state to point out
why the case in question should not be dis-
missed because of the repeal and re-enact-
ment of the said act.
Speaking broadly and generally, the state
is protesting and appealing against the
wrongful granting of a temporary injunc-
tion, and the state's rights in this particular
are not different because the statute has
been repealed and re-enacted than though it
had remained in precisely the same language
as when the cause was heard and when the
appeal was taken.
It should be kept clearly in mind that the
state is not asking this court to pass upon
the constitutionality of the statute in ques-
tion which has been repealed and re-enacted.
If it were so, to that extent the case would
be a moot case; rather, the state is coming
before this court insisting 4tiat inferior
federal courts shall not indulge in moot and
academic questions by passing upon the con-
stitutionality of statutes when every right of
complainant may be protected without pass-
ing upon the constitutionality of the law.
Therefore the purpose of thie appeal is first,
to obtain relief from the wrongful granting
of a temporary injunction; second, to re-
establish the principle that state statutes are
not to be stricken down as unconstitutional
when complainant's rights may be fully pro-
tected without passing upon the constitu-
tionality of the act; and, third, for the pur-
pose of overruling an erroneous decision
which, if it stands without reversal, may
create untold mischief.
See Davis vs. Berry, 216 Fed., 413.
ARGUMENT.
The state contends that this case is gov-
erned by the doctrine announced in Southern
Pacific Terminal Company vs. Interstate
Commerce Commission and Young, 219 U.
S., 498; and that of United States vs. Trans-
Missouri Freight Association, 166 U. S., 290
at 308, and cases therein cited and Boise City
In. Co. vs. Clarke, 131 Fed. 416, rather than
Richardson vs. McChesney, 218 U. S., 487,
and Jones vs. Montague, 194 U. S., 147.
There is nothing better settled in the entire
jurisprudence of this country than that a
person is not entitled to ask that a court shall
Detailed RbviEw o^ Litigation — Iowa
199
strike down as unconstitutional a statute,
unless it is shown that he himself will be
injured by the unconstitutional law. It is
not only the doctrine of every state in the
Union and every text writer, but the doctrine
of this court.
This court in the case of Hooker vs. Burr,
194 U. S., 415, speaking through Mr. Justice
Peckham, page 419, announced the doctrine
as follows:
"We have lately held (therein following
a long line of authorities) that a party insist-
ing upon the invalidity of a statute, as violat-
ing any constitutional provision, must show
that he may be injured by the unconstitu-
tional law before the courts will listen to his
complaint. Tyler vs. Judges, etc., 179 U. S.,
405; Turpin vs. Lemon, 187 U. S., 51, 60.
If, instead of showing any injury, the plain-
tiff shows that he cannot possibly be injured,
he cannot, of course, ask the interference of
the court."
And this court said in the comparatively
recent case of McCabe vs. A., T. & S. F.
Ry. Co., 235 U. S., 151, that before an in-
junction would be granted, the complainant
must show a personal need and an absence
of adequate remedy at law, and "the fact
that some one else, although of the same
class as complainant, may be injured, does
not justify granting the remedy."
And in that case it was held that colored
men were not entitled to have the statute
of Oklahoma held unconstitutional in the
absence of a showing that they personally
had been discriminated against because of
the certainty that some other colored man
would be discriminated against if the statute
was permitted to remain as a valid act of
the legislature of Oklahoma. The court, on
page 164, said:
"The desire to obtain a sweeping injunc-
tion cannot be accepted as a substitute for
compliance with the general rule that the
complainant must present facts sufficient to
show that his individual need requires the
remedy for which he asks."
It is further a cardinal principle of consti-
tutional law that a court will not pass upon
a constitutional question if the case can be
otherwise decided.
In the case of Light vs. United States, 220
U. S., 523, this principle is again affirmed
and announced, the court refusing to pass
upon the constitutional questions involved
because unnecessary, and citing Siler vs.
Louisville & NashvUle R. R., 213 U. S., 175.
We then have this situation: complainants
in the court below filed a bill asking for
certain relief. Defendants granted the relief
in toto and made it absolutely certain that
no possible injury would result to them.
This being true, complainant's bill should
have been dismissed and the court should
have declined to have passed upon the consti-
tutionality of the act. When the court, how-
ever, proceeded in spite of this fact to file
an opinion upon the constitutionality of the
act, they entered into an academic discussion
which was not necessary in order to protect
any rights of the complainants. The deci-
sion then of the inferior federal court became
both academic and moot, and it is this very
decision which the state is protesting against ^
in this court. Instead of this appeal being
dismissed as moot, the bill of the complain-
ants should be dismissed as moot with costs.
If the appeal is dismissed, then the erroneous
decision, carelessly written, containing mis-
statements as to the record and fundamental
errors of law, will stand as a precedent. For
this reason a public question is involved and
a public interest attaches to the decision in
question.
We desire to repeat what we said in the
main argument, not by way of criticism, but
as a conservative statement of the fact, that
almost every law looking toward social or
moral reform, which has been passed by the
several states in the Union in the last decade,
has been held unconstitutional by some
inferior federal or state court. This abuse
by the federal courts, and the other inferior
courts, had a far-reaching effect upon the
thought of this country. This protest was
manifest in several ways. The recall of the
judiciary was demanded — indeed, not only
demanded but incorporated in the constitu-
tion of at least six of the states of the Union.
See Constitution of Oregon, Art. II,
Sec 18;
Constitution of California, Art. XXIII;
Constitution of Colorado, Art. XXI, and
amendments to Art. VI, Sec. 1;
Constitution of Arizona, Art. VIII, Sec. 1;
Constitution of Nevada, Art. II, Sec. 9;
Constitution of Kansas, Art. IV, Sec. 3,
4 and 5.
Ohio, however, and I think some other
states incorporated into their constitution a
much more practical remedy. Article IV
of the Constitution of Ohio requires the con-
currence of all but one of the seven judges
of the Supreme Court of that state in order
200
DetaiIvEd Review oi? Litigation — Iowa
to hold a law of the state unconstitutional,
except in affirming a judgment of the Court
of Appeals holding a law invalid.
The National Association of Attorneys-
General started- an agitation which resulted
in the act of congress which prohibited one
United States judge from granting a tempo-
rary injunction upon the ground of the un-
constitutionahty of a state statute, and
required that before such an injunction
should issue, there must be three judges sit-
ting, two of whom must concur and one of
such judges riiust be an associate justice of
the Supreme Court of the United States or a
United States Circuit judge. Acts of Con-
gress, June 18, 1910, Section 17. Section
^ 366, 61st Congress, U. S. Statutes at Large,
page 1162; Ex Parte Metropolitan Water
Co., 220 U. S., 539.
It is perfectly elementary that an appeal
may be had from the wrongful granting of a
temporary injunction. It was the abuse of
wrongfully, granting temporary injunctions
which congress squght to correct. It is this
abuse incorporated in the form of an opinion
entitled, Davis vs. Berry, and recorded in 216
Fed., pages 413-419, inclusive, which the
state is insisting should be overruled so that
it will not stand as a sign board pointing in
a wrong direction to other judges of the
United States and to state courts.
The case ceased to have any personal
consideration from the very moment that the
state offered to give the complainants in the
court below full relief, but the state is vitally
concerned with these two fundamental
propositions: the constitutionality of an act
should not be passed upon by either a federal
or a state court unless the rights of the
parties to the suit make it imperative.
Light vs. United States, 220 U. S., 623 at
538;
Silver vs. Louisville & Nashville R. R.,
213 U. S., 176;
Cyc. on Constitutional Law, Vol. S, p. 98,
Par. 3-b.
And no injunction shall be granted on the
complaint of any one unless he himself will
suffer injury.
McCabe vs. A., T. & S. F. Ry. Co., 235
U. S., 151.
To dismiss the appeal would be to encour-
age inferior courts to go beyond the necessi-
ties of the case and render academic and
moot decisions on constitutional questions.
To sustain the appeal and dismiss complain-
ants' original bill, or overrule the decision
of the inferior court, will be in harmony with
the jurisprudence of this and every civilized
country of the world, and will be to dis-
courage academic and moot discussions of
constitutional law and place a check upon
the abuse of power of inferior courts in ex-
ceeding the necessities of the case. It will
likewise be in exact harmony with the act
of congress previously referred to.
Let me again state that this is not a case
where the state is asking this court to pass
upon the constitutionality of a statute which
has been repealed, but the state is asking that
the decision recorded in the Federal Re-
porter wrongfully granting a temporary
injunction should be overruled and the doc-
trine reaffirmed that no injunction shall be
granted to a complainant, much less a tempo-
rary injunction, unless he shows that he
himself will suffer injury in the absence of
the granting of such an injunction, and that
the constitutionality of an act shall not be
passed upon unless the rights of the parties
to the suit make it imperative.
We respectfully submit that the state's
appeal should be sustained and that com-
plainant's original bill should be dismissed
with costs.
GEORGE COSSON,
Attorney General of Iowa.
For the Plaintiffs in Error.
DECISION OF THE SUPREME COURT
OF THE UNITED STATES.
(See U. S. Report, Vol. 242, pp. 468-470.)
BERRY ET AL., CONSTITUTING THE
BOARD OF PAROLE OF IOWA,
ET AL., VS. DAVIS.'
Appeal from the District Court of the
United States for the Southern Dis-
trict of Iowa.
No. 47.
Submitted October 26, 1916;
Decided January 15, 1917.
When injunctive relief against action by
state officials granted in the court below
becomes superfluous and the case moot
'On December 4, 1916, the Chief Justice
made the following announcement:
"Attention Is directed to the fact that the
statute of Iowa of April 19, 1913, Supplement
to Iowa Code, 1913, p. 1082, concerning which
the appellee complained and the enforcement
of which by the Board of Parole he sought by
his suit to enjoin, has been repealed during
the pendency of the case in this court (see
Act of 1915, Supplemental Supplement to Iowa
Code. 191B. p. 238). In view of this fact per-
mission is given the State through its Attor-
ney-General on or before January 1, 1917, by
printed brief to point out the reasons, if any,
which exist why the appeal In this case should
not be dismissed."
Detailed Review op Litigation — Iowa
201
because of subsequent state legislation passed
while the case is here pending, this court will
reverse and remand with directions to dis-
miss the bill without costs.
316 Fed. Rep. 413, reversed.
The case is stated in the opinion.
Mr. George Cosson, Attorney-General of
the State of Iowa, and Mr. Ross R. Mowry,
Assistant Attorney-General of the State of
Iowa for appellants.
No appearance for appellee.
MR. JUSTICE HOLMES delivered the
opinion of the court.
This is a bill to enjoin the State Board of
Parole and the warden and physician of the
state penitentiary at Fort Madison from per-
forming vasectomy upon the plaintiff, the
defendant in error, in pursuance of an Iowa
statute approved April 19, 1913; 35 G. A.,
c. 187, Sec. 1. Supplement to Code 1913,
c. 19-B, Sec. 2600-p. This act among other
things directed the operation to be performed
upon convicts in the penitentiary who had
been twice convicted of felony, and on
February 14, 1914, the Board had ordered it,
upon the ground that the plaintiff had been
twice so convicted. The bill was filed on
March 11, 1914. On April 15, 1914, following
an opinion of the Attorney-General that both
felonies must have been committed after the
passage of the act, the order was laid on the
table, and the warden and physician made
affidavits, filed on April 33, that the opera-
tion would not be performed by them.
Nevertheless, three judges, disregarding the
foregoing opinion and action, proceeded to
issue a preliminary injunction as prayed in
the bill; 216 Fed. Rep. 413.
An appeal was taken to this court in 1914.
In 1915 the Act of 1913 was repealed, and
the substituted act does not apply to the
plaintiff. Supplemental Supplement to the
Code of Iowa, 1915, c. 19-B, Sec. 2600-sl.
All possibility or threat of the operation has
disappeared now, if not before, by the act
of the State. Therefore, upon the precedents.
we are not called upon to consider the
propriety of the action of the District Court,
but the proper course is to reverse the decree
and remand the cause with directions that
the bill be dismissed without costs to either
party. United States vs. Hamburg-Ameri-
kanische Packetfahrt-Actien Gesellschaft,
239 U. S. 466, 475, 478; Jones vs. Montague,
194 U. S. 147, 153; Dinsmore vs. Southern
Express Co., 183 U. S. 115, 120; Mills vs.
Green, 159 U. S. 651, 658.
Decree reversed. Bill to be dismissed
without costs to either party.
CHAPTER VII. (Continued)
PART IV. MICHIGAN.
1. Probate Court of Lapeer County.
a. Notice by Board of Control to Guardian 203
b. Reply to Notice 204
c. Petition of Superintendent 204
d. Order Denying Petition '. 205
e. Notice of Appeal 205
2. Circuit Court of Lapeer County.
a. Order Dismissing Appeal 206
b. Opinion of Circuit Judge 206
3,. State Supreme Court.
a. Petition to Supreme Court 207
b. Order of Supreme Court 208
t.. Return of Respondent 209
d. Brief of Attorney General as amicus curiae 209
e. Decision of Supreme Court 213
Detaii^ed Review of IvITigation — Michigan
203
(IV.) MICHIGAN.
(.Act 34, April 1, 1913.)
The Michigan statute is applicable to the
inmates (Sec. 1) "* * * of any institution
maintained wholly or in part at public ex-
pense, and who have been by a court of
competent jurisdiction adjudged to be, and
who are mentally defective or insane." The
method of selecting such inmates for sterili-
zation is as follows:
(Section 2) "* * * The boards of the afore-
said institutions and the physicians and sur-
geons in charge of each of said institutions
shall for each' of their respective institutions
constitute a board." This board examines
such inmates "* * * as are reported to them
by the warden or medical superintendent to
be persons by whom procreation would be
inadvisable." "* * * if in the judgment of the
majority of said board procreation by any
such person would produce chfldren with
inheritance of insanity, feeble-mindedness,
idiocy, or imbecility * * *, then said board
shall direct a competent physician or sur-
geon * * * to perform the operation * * *."
There is a provision in the statute for
notifying the parent or guardian of a person
nominated for sterilization. The opinion of
the legislators evidently was that, in case no
objection is raised, the matter is one well
within the administrative functions of its
state institutions, and would not, in such
cases, involve court procedure in order to
effect due process of law.
This statute was tested in the case of Nora
Reynolds, an inmate of the Michigan Home
and Training School, at Lapeer. The final
opinion was written by Mr. Justice Steere
of the Supreme Court of Michigan, and filed
March 28, 1918, the case having passed
through the probate and circuit courts of
Lapeer County, both of which had main-
tained the unconstitutionality of the act, on
the ground of "class legislation," specifically
denying the equal protection of the laws to
feeble-minded persons within custodial insti-
tutions and within the population at large.
1. THE PROBATE COURT OF LA-
PEER COUNTY.
May 4, 1916. The Probate Court of
Lapeer County denied the petition of H. A.
Haynes, Superintendent of the Michigan
Home and Training School to order the
sterilization of Nora Reynolds, an inmate
of said institution, on the ground that the
Act of April 1, 1913, is "unconstitutional."
In rendering this decision the court did not
state whether the constitution of the State
of Michigan or of the United States was
violated, nor was the particular provision
violated named.
The principal documents in the case
follow:
a. Notice by the Board of Control of the
Michigan Home and Training School to
John Roach, guardian ad litem of Nora
Reynolds, an inmate of said school.
To:
John Roach,
Guardian or parents of Nora Reynolds,
mentally defective, an inmate of the
Michigan Home and Training School, at
Lapeer, Michigan.
YOU WILL PLEASE TAKE NOTICE
THAT, Whereas, it has been reported to
the Board of Control of the said Michigan
Honae and Training School by the superin-
tendent thereof that the said Nora Reynolds
is a person by whom procreation would be
inadvisable; and, whereas, upon report of ex-
perts and examination of the physical and
mental condition of the said Nora Reynolds,
together with her family history, in the judg-
ment of the said Board of Control, procre-
ation by the said Nora Reynolds would pro-
duce children with an inherited tendency to
insanity, feeble-mindedness, idiocy or imbe-
cility, and that there is no probability that
the condition of the said Nora Reynolds will
improve to such an extent as to render pro-
creation by her advisable; therefore, it has
been ordered by the said Board of Control
that a surgical operation known as salpin-
gectomy be performed upon the said Nora
Reynolds by some competent surgeon em-
ployed for that purpose, at the hospital of
the said Michigan Home and Training School
at Lapeer, on the 7th day of June, 1915, and
that due notice of the time and place of such
surgical operation be given to you at least
thirty days before the performance of the
same as provided by law. Said operation
to be in accordance with Act No. 34 of the
Public Acts of the State of Michigan for the
year 1913. And that you are further notified
that if you desire to make objection to the
performance of the said operation of salpin-
gectomy upon the said Nora Reynolds you
are to file your objection with H. A. Haynes,
Medical Superintendent of the said Michigan
Home and Training School at Lapeer, Mich-
igan, on or before the day of the operation
aforesaid.
Dated, Lapeer, May 13, 1915.
204
Detailed Review of IvITigation — Michigan
BOARD OF CONTROL OF THE MICH-
IGAN HOME AND TRAINING
SCHOOL.
By Norman Flowers, President.
By John S. Smith, Secretary.
b. The reply of John Roach, guardian
ad litem of Nora Reynolds:
To:
THE BOARD OF CONTROL OF
THE MICHIGAN HOME AND
TRAINING SCHOOL.
Having been duly notified by the Presi-
dent and Secretary of the Board of Control
of the Michigan Home and Training School
that said Board of Control has ordered that
a surgical operation known as salpingectomy
be performed upon one Nora Reynolds, a
mentally defective inmate of said institution
on the 7th day of June, 1915, and having Ijeen
notified that the said operation would be per-
formed in accordance with and under Act
34 of the Public Acts of the State of Michi-
gan for the year 1913, I hereby, as guardian
ad litem of the said Nora Reynolds, enter
my objection to said operation for the fol-
lowing reasons to-wit:
1st. That it is unconstitutional in that it is
in violation of Article VIII, Declaration of
Rights, Constitution of the United States,
which reads as follows:
"Excessive bail shall not be required nor
excessive fines imposed, nor cruel or unusual
punishment inflicted."
And also Article II, Section 15, Constitu-
tion of the State of Michigan, which reads as
follows:
"Excessive bail shall not be required; ex-
cessive fines shall not be imposed; cruel and
unusual punishment shall not be inflicted nor
shall vvitnesses be unreasonably detained."
2H. That it is unconstitutional in that it
is in violation of Article XIV, Section 1,
Declaration of Rights, Constitution of the
United States, which reads as follows:
"All persons born or naturalized in the
United States and subject to the jurisdiction
thereof, are citizens of the United States and
of the State wherein they reside. No State
shall make or enforce any law which shall
abridge the privileges or immunities of citi-
zens of the United States, nor shall any State
deprive any person of life, liberty, or prop-
erty without due process of law, nor deny to
aiiy person within its jurisdiction the equal
protection of its laws."
And also in that it is in violation of Sec-
tion 3, Article IV of the Constituton of the
United States, which reads as follows:
"The citizens of each State shall be entitled
to all privileges and immunities of citizens in
the several States."
3d. That it is unconstitutional in that it is
not only in violation of the above mentioned
acts but it is in violation of the spirit of the
Constitution both State and Federal, which
extends to all citizens regardless of their
imperfections, the equal protection of the
law.
By JOHN ROACH,
Guardian ad litem of the above named Nora
Reynolds.
c. Petition of Superintendent H. A. Haynes
of the Michigan Home and Training
School, to the Probate Court of Lapeer
County:
STATE OF MICHIGAN,
THE PROBATE COURT FOR THE
COUNTY OF LAPEER.
IN THE MATTER of Nor^ >.
Reynolds, a Mentally Defec- I
tive Inmate of The Michigan f"
Home and Training School. J
I.
Your petitioner, H. A. Haynes, respect-
fully represents that he resides in the City
of Lapeer, in said county, that he is inter-
ested in said matter and makes this petition
as medical superintendent of the Michigan
Home and Training School and for and in
behalf of the Board of Control of the said
Michigan Home and Training School.
II.
Your petitioner further represents that it
has been reported to- the Board of Control
of said Michigan Home and Training School
by the superintendent thereof that said Nora
Reynolds is a person by whom procreation
would be inadvisable and upon the report
of experts and from the examination of the
physical and mental condition of said Nora
Reynolds together with her family history
in the judgment of the said Board of Control
procreation by the said Nora Reynolds
would produce children with an inherent
tendency to insanity, feeble-mindedness and
idiocy or imbecility, and that there is no
probability that the condition of the said
Nora Reynolds will improve to such an
extent as to render procreation by her advis-
Detailed Review of Litigation — Michigan
205
able, therefore, it has been ordered by the
said Board of Control that a surgical opera-
tion known as salpingectomy be performed
upon said Nora Reynolds by some competent
surgeon employed for that purpose.
III.
Your petitioner further represents that
upon the 23d day of April, 1915, John Roach
of the City of Lapeer was duly appointed
by the Probate Court of said- County of
Lapeer as guardian of said Nora Reynolds.
IV.
Your petitioner further shows that the 7th
day of June, A. D. 1915, was the date fixed
by the said Board of Control of the Michi-
gan Home and Training School for said
operation, and that thirty days before the
time fixed for said operation notice was duly
served upon John Roach, the guardian of
said Nora Reynolds, at the City of Lapeer,
in said County of Lapeer, a copy of which
notice is hereto annexed and marked Exhibit
"A," and that before the time fixed in said
notice for said operation, the said John
Roach, as guardian of said Nora Reynolds,
filed with the said Board of Control of the
said Michigan Home and Training School
written objections to the performance of said
operation, a copy of said objections is
hereto attached and marked Exhibit "B."
Your petitioner therefore prays that a
time be fixed for hearing of this petition
before the said Probate Court for the County
of Lapeer as is provided in Section 2 of
Act 34 of the Public Acts of the State of
Michigan for 1913, and at such hearing this
court shall determine the mental defective-
ness or insanity of said Nora Reynolds and
the necessity for said operation.
And your petitioner will ever pray.
H. A. HAYNES.
d. Order of the Probate Coiu-t of Lapeer
County Denying Petition.
STATE OF MICHIGAN,
THE PROBATE COURT FOR THE
COUNTY OF LAPEER.
At a session of said court, held at the
Probate Office in the City of Lapeer, in said
County, the 4th day of May, A. D. 1916.
Present, Hon. Daniel F. Zuhlke, Judge of
Probate.
In the matter of Nora Reynolds, a men-
tally defective inmate of the Michigan Home
and Training School.
H. A. Haynes, Medical Superintendent of
the said Michigan Home and Training
School, having for and in behalf of the
Board of Control of the said Michigan Home
and Training School filed in said court his
petition praying that a time be fixed for
hearing of his said petition before said Pro-
bate Court for the County of Lapeer, as
provided in Section 2 of Act No. 34 of the
Public Acts of the State of Michigan for
the year 1913, and that at such hearing this
Court shall determine the mental defective-
ness or insanity of the said Nora Reynolds,
and the necessity, for an operation as pro-
vided in said Act No. 34 of the Public Acts
of 1913. After reading and considering said
petition, this Court believing that the said
Act No. 34 of the Public Acts of 1913 is un-
constitutional, and this Court therefore
refuses to hear said petition.
It is Ordered, That the prayer of said
petition be denied and the said petition be
and is hereby dismissed.
DANIEL F. ZUHLKE,
[Seal] Judge of Probate.
e. Notice of Appeal to Circuit Court:
STATE OF MICHIGAN,
THE PROBATE COURT FOR THE
COUNTY OF LAPEER.
To the Probate Court for said County:
In the matter of Nora Reynolds, a men-
tally defective inmate of the Michigan Home
and Training School.
I, H. A. Haynes, respectfully represent
that I reside in the City of Lapeer, in said
County, and am interested in said matter as
medical superintendent of the Michigan
Home and Training School, acting for and
in behalf of the Board of Control of said
Michigan Home and Training School.
I further represent that I am aggrieved by
the order of said court made on the 4th day
of May, A. D. 1916, and I hereby give notice
of an appeal to the Circuit Court for said
County from the said order for the follow-
ing reasons, viz:
1. That the said court erred in refusing
to determine the mental defectiveness or
insanity of Nora Reynolds, and the necessity
for an operation as provided by Act 34 of
the Public Acts of 1913.
2. That the court erred in refusing to
hear the petition filed in accordance with
Act 34 of the Public Acts of 1913.
3. That the court erred in denying the
prayer of said petition and in dismissing the
same.
206
Detaii,i;d Review oe Litigation — Michigan
4. That the court erred in holding Act 34
of the Public Acts of 1913 unconstitutional.
5. That Act 34 of the Public Acts of 1913
violates no provision of the constitution of
the United States.
6. That Act 34 of the Public Acts of 1913
violates no provision of the Constitution of
the State of Michigan.
Dated this 19th day of May, A. D. 1916.
H. A. HAYNES,
Medical Superintendent of the Michigan
Home and Training School.
The appeal was duly allowed by Hon.
Daniel F. Zuhlke, Judge of Probate, on May
20, 1916.
2. CIRCUIT COURT OF LAPEER
COUNTY.
September 10, 1917, the Circuit Court
of Lapeer County sustained the decision of
the Probate Court, on the ground that the
Act of April 1, 1913, is contrary to Section 1,
Article XIV of the Constitution of (the
United States, and is class legislation.
PRINCIPAL DOCUMENTS:
a. Order of Circuit Court of Lapeer County
dismissing the appeal from the Probate
Court:
STATE OF MICHIGAN,
THE CIRCUIT COURT OF THE
COUNTY OF LAPEER.
In Re Nora Reynolds, a Men- )
tally Defective Person. (
At a session of said court held at the
Court House, in the City of Lapeer, on the
10th day of September, 1917.
Present: Hon. William B. Williams,
Circuit Judge.
In this cause an appeal was taken from an
order of the Probate Court to the effect that
Act 34 of the Public Acts of 1913 is unconsti-
tutional. After due consideration of the
briefs of counsel for the respective parties, it
appearing to my satisfaction that said Act
is unconstitutional in that it is in violation
of Section 1 of Article XIV of the Consti-
tution of the United States, and is class legis-
lation, it is ordered that said appeal be, and
the same is hereby dismissed, and the order
of the Probate Court is affirmed, but without
costs to either party.
WILLIAM B. WILLIAMS,
Circuit Judge.
b. Opinion of William B. Williams, Cir-
cuit Judge:
STATE OF MICHIGAN,
THE CIRCUIT COURT FOR THE
COUNTY OF LAPEER.
In Re Nora Rejmolds, a Men-
tally Defective Person.
OPINION.
This is a proceeding to test the consti-
tutionality of Act 34, Public Acts of 1913.
Nora Reynolds is an inmate, of the Michigan
Home and Training School. The Board of
Control of said institution took the proper
preliminary steps to determine whether the
operation of salpingectomy should be per-
formed on her, the object of said operation
being to make it impossible for her to bear
children.
On the hearing in the Probate Court, Act
34 was held unconstitutional, and an appeal
was taken to the Circuit Court. I am of the
opinion that the act in question is clearly in
violation of Section 1 of Article XIV of the
Declaration of Rights of the Constitution of
the United States. That it is class legisla-
tion, and therefore, unconstitutional.
The object of the statute is clear and the
result sought to be reached is much to be
desired but the statute so limits the class
of feeble-minded persons who may be
brought within its provisions as to almost
entirely subvert its object and make it clearly
class legislation.
It will be observed that the Act is only
applicable to that class of feeble-minded
persons who are inmates of institutions
maintained wholly or. in part at public ex-
pense. The same reason obtains for steriliz-
ing feeble-minded persons who are inmates
of private institutions, and it is certainly
more imperative for sterilization of feeble-
minded persons who are under no restraint
in any institution, either public or private,
yet this statute makes it a felony to sterilize
such persons.
A similar statute has recently been held
unconstitutional by the Supreme Court of
New Jersey : Smith vs. Board of Examiners
of Feeble-Minded, 88 Atl. 963. The reasons
there given why the Act is unconstitutional
seem to me so conclusive that I am content
to base my conclusion on the reasoning of
that case.
I have not considered the question whether
the Act might be upheld as a proper police
regulation if it applied to all feeble-min<lecl
persons.
De;taii,bd Review oE Litigation — Michigan
207
An order may be entered, therefore, dis-
missing the appeal, but without costs, thus
affirming the order of the Probate Court.
WILLIAM B. WILLIAMS,
Circuit Judge.
3. STATE SUPREME COURT.
March 28, 1918, the State Supreme Court
denied the writ of mandamus and sustained
the decision of May 4, 1916, and of the Cir-
cuit Court of the same County of September
10, 1917, that the Act of April 1, 1913, is
unconstitutional. (166 N. W. Rep. p. 938.)
PRINCIPAL DOCUMENTS:
a. Petition of Superintendent H. A.
Haynes of the Michigan Home and Train-
ing School, to the Supreme Court of Michi-
gan, to issue writ of mandamus commanding
Circuit Judge William B. Williams to show
cause why a peremptory mandamus should
not be issued to compel said circuit judge
to vacate the order mentioned in the petition
and to try appeal upon its merits:
STATE OF MICHIGAN.
Supreme Court.
To the Honorable Supreme Court of the
State of Michigan:
Your petitioner, H. A. Haynes, respect-
fully shows that he is the medical superin-
tendent of the Michigan Home and Training
School, duly appointed and qualified as such.
I.
That Nora Reynolds is and has been for
some years past an inmate of the Michigan
Home and Training School, having been
duly committed to that institution as a men-
tally defective person.
IL
That on the 23d day of April, A. D. 1915,
John Roach of the City of Lapeer was
appointed guardian of the said Nora Reyn-
olds, and duly qualified as such.
IIL
That, pursuant to the provisions of Act 34,
of the Public Acts of 1913, it was made to
appear to the Board of Control of the Michi-
gan Home and Training School that the
said Nora Reynolds was a person by whom
procreation would not be advisable, and upon
the report of experts and from an examina-
tion of the physical and mental condition of
the said Nora Reynolds, together with her
family history, in the judgment of the said
Board of Control, procreation by the said
Nora Reynolds would produce defective and
feeble-minded children with an inherent
tendency to feeble-mindedness, imbecility
and insanity, and that there was no proba-
bility that the condition of the said Nora
Reynolds would improve to such an extent
as to render procreation by her advisable.
Whereupon said Board of Control ordered
that the surgical operation, known as salpin-
gectomy, should be performed upon the said
Nora Reynolds by some competent surgeon
employed for that purpose, pursuant to the
provisions of Act 34 of the Public Acts of
1913.
IV.
That on the 7th day of June, A. D. 1915,
was the day fixed by the said Board of Con-
trol of the Michigan Home and Training
School for the performance of said operation,
and that thirty days prior to the time fixed
for said operation notice was duly served
on John Roach, the guardian of said Nora
Reynolds, at the City of Lapeer, in the
County of Lapeer, a copy of which notice
is hereto annexed and marked "Exhibit A,"
and that before the time fixed in the said
notice for said operation the said John
Roach, as guardian of the said Nora Rejm-
olds, filed with the said Board of Control of
the Michigan Home and Training School
written objections to the performance of
said operation, a copy of which objections
are hereto attached and marked "Exhibit
B." Whereupon petitioner filed a petition
in the Probate Court for the said County of
Lapeer praying that the said court determine
the mental defectiveness or insanity of the
said Nora Reynolds, and the necessity for
performing said operation, a copy of which
petition being hereto attached and marked
"Exhibit C."
V.
That afterwards, on the 23d day of July,
A. D. 1915, a hearing was had on said peti-
tion and an order made and entered by the
said Probate Court dismissing said petition,
a copy of said order being hereto attached
and marked "Exhibit D."
VI.
That an appeal was duly made to the Cir-
cuit Court for the County of Lapeer from
the said order dismissing said petition, a
copy of the notice and reasons for the appeal,
the order allowing said appeal and the proof
of service of the same being hereto attached
and marked "Exhibit E."
VII.
That afterwards, on the 16th day of June,
A. D. 1916j John Roach, the guardian of the
208
Detailed Review of Litigation — Michigan
said Nora Reynolds, made and filed a motion
in said court to dismiss said appeal, a true
copy of said motion being hereto attached
and marked "Exhibit^F." That said motion
was heard on the 10th day of September,
A. D. 1917, and an order entered by said
court on the 10th day of September, A. D.
1917, dismissing said appeal, a true copy of
said order being hereto attached and marked
"Exhibit G." The reasons for making said
order being set forth in the opinion of the
court, a copy of which opinion is hereto
attached and marked "Exhibit H."
VIII.
Your petitioner further shows that the
Honorable William B. Williams is tRe circuit
judge of said court and presided as such upon
the hearing of said motion and made the
order therein set forth, and in making the
same committed error because:
(a) Act 34 of the Public Acts of 1913 is
not unconstitutional.
(b) Act 84 of the Public Acts of 1913 is
not class legislation.
Wherefore, your petitioner prays:
(a) That an order to show cause may be
issued out of and under the seal of this
honorable court directed to the said William
B. Williams, circuit judge, requiring said
William B. Williams, circuit judge, to show
cause why a writ of mandamus should not
issue out of this court commanding the said
William B. Williams to vacate and set aside
said order dismissing said appeal and to pro-
ceed with the hearing of said appeal upon the
merits.
(b) Upon failure of said William B. Wil-
liams, circuit judge, to show cause satis-
factorily to this court that the said order
dismissing said appeal should not be vacated
and set aside, that a peremptory writ of
mandamus issue out of this court directed
to the said William B. Williams, circuit
judge, commanding the said William B.
Williams to vacate and set aside said order
dismissing said appeal and proceed to the
hearing of said appeal upon the merits.
And your petitioner will ever pray.
H. A. HAYNES.
STATE OF MICHIGAN,
County of Lapeer, ss:
On the S9th day of September, 1917, per-
sonally appeared the above named petitioner
and made oath that he has read the fore-
going petition and knows the contents
thereof and that the same is true of his own
knowledge except as to those matters therein
stated to be on information and belief and
as to those matters he believes it to be true.
HARRY S. EVANS,
Notary Public Lapeer County, Mich.
[Seal] Commission expires April 9, 1919.
b. Order of Supreme Court commanding
Circuit Judge William B. Williams to
show cause why a peremptory mandamus
should not be issued to compel said cir-
cuit judge to vacate the order mentioned
in the appeal and try the case upon its
merits.
THE SUPREME COURT OF THE
STATE OF MICHIGAN.
At a session of the Supreme Court of
the State of Michigan, held at the Supreme
Court Room, in the Capitol, in the City of
Lansing, on the 4th day of October, in the
year of our Lord one thousand nine hun-
dred and seventeen.
Present:
The Hon. Franz C. Kuhn,
Chief Justice;
John W. Stone,
Russell C. Ostrander,
John E. Bird,
Joseph B. Moore,
Joseph H. Steere,
Flavins L. Brooke,
Grant Fellows,
Associate Justices.
H. A. HAYNES, Superintend- '
ent of the Michigan Home
and Training School,
Relator.
vs.
WILLIAM B. WILLIAMS,
Circuit Judge,
Respondent.
On the reading and filing the petition and
accompanying affidavits of relator above
named and on motion of Alex J. Groesbeck,
Attorney- General, and Clare Retan and
L. W. Carr, Assistant Attorneys-General,
attorneys for relator, ordered that said re-
spondent, said William B. Williams, circuit
judge, do show cause to this court on the
23d day of October, 1917, why a peremptory
mandamus should not be issued out of and
under the seal of this court to compel him,
the said William B. Williams, circuit judge,
to vacate and set aside the order referred to
in said petition, whereby he, the said William
B. Williams, dismissed relator's appeal from
an order of the Probate Court of the County
of Lapeer, in the matter of Nora Reynolds,
•No. 28151.
Ddtahed R^viKw of Litigation — Michigan
209
a mentally defective inmate of the Michigan
Home and Training School, and to proceed
to hear said appeal upon the merits.
And it is further ordered that a certified
copy of this order together with a copy of
the petition and affidavits aforesaid and upon
which this order is founded be served upon
the said respondent at least ten days before
the time herein limited for showing cause.
STATE OF MICHIGAN, ss:
i. Jay Mertz, Clerk of the Supreme Court
of the State of Michigan, do hereby certify
that the foregoing is a ti^ue and correct copy
of an order entered in said Court in said
cause; that I have compared the same with
the original, and that it is a true transcript
therefrom, and the whole of said original
order.
In Testimony Whereof, I have
hereunto set my hand and affixed
the seal of said Supreme Court at
[Seal.] Lansing, this fourth day of Octo-
ber, in the year of our Lord one
thousand nine hundred and
seventeen.
JAY MERTZ,
Clerk.
c. Return of Respondent.
SUPREME COURT.
STATE OF MICHIGAN,
Supreme Court.
H. A. HAYNES, Superintend-
ent of the Michigan Home
and Training School,
Relator,
vs.
WILLIAM B. WILLIAMS,
Circuit Judge,
Respondent.
RETURN OF RESPONDENT TO
ORDER TO SHOW CAUSE.
Answer of the above named respondent to
the order to show cause heretofore issued in
said cause and to the petition of the relator
on which said order was based, respectively,
shows to this honorable court:
I.
The allegations of paragraph one of the
petition are admitted.
n.
The allegations of paragraph two of the
petition are admitted.
III.
The allegations of paragraph three of the
petition are admitted.
IV.
The allegations of paragraph four of the
petition are admitted.
V.
The allegations of paragraph five of the
petition are admitted.
VI.
The allegations of paragraph six of the
petition are admitted.
VII.
The allegations of paragraph seven of the
petition are admitted.
VIII.
Answering paragraph eight respondent
admits that he is circuit judge and presided
as such upon the hearing of said motion and
'made the order therein set forth, but denies
that he committed error in making the same,
for the reasons set forth by the relator in
said paragraph eight.
IX.
Respondent denies that the relator is
entitled to the writ of mandamus as prayed
for, and therefore asks that this petition be
dismissed.
WILLIAM B. WILLIAMS,
Circuit Judge.
STATE OF MICHIGAN,
County of Lapeer, ss:
On. the 6th day of October, 1917, per-
sonally appeared the above named respond-
ent, William B. Williams, Circuit Judge, and
made oath that he has read the foregoing
answer and knows the contents thereof and
that the same is true of his own knowledge
except as to those matters therein stated to
be on information and belief and as to those
matters he believes it to be true.
THERESA B. BUTTS,
Notary Public, Lapeer Co., Mich.
My commission expires Sept. 13, 1918.
d. Brief of Attorney-General as Amicus
Curiae.
Statement of facts.
Preliminary statement.
SPECIFICATION OF ERROR.
The court erred in holding that Act No. 34
of the Public Acts of 1913 is in violation of
Section 1 of Article XIV of the Declaration
of Rights of the Constitution of the United
States of America.
210
Detailed Review op Litigation — Michigan
ARGUMENT.
The only case we have been able to dis-
cover which is in point with the case at bar
is Smith vs. Board of Examiners of Feeble-
Minded, 88 Atl. 963. The facts in that case
are as follows:
The Board of Examiners of Feeble-
Minded of the State of New Jersey ordered
an effective operation for the prevention of
procreation to be performed upon one Alice
Smith. This order was made by virtue of
the authority conferred upon said Board by
provisions of P. L. of 1911, page 353. The
title and pertinent parts of said statute read
as follows:
"An act to authorize and provide for the
sterilization of feeble-minded (including
idiots, imbeciles and morons), epileptics,
rapists, certain criminals and other defec-
tives.
"Whereas, heredity plays a most important
part in the transmission of feeble-minded-
ness, epilepsy, criminal tendencies and other
defects :
"Be it enacted by the Senate General
Assembly of the State of New Jersey:
"1. Immediately after the passage of this
act, the Governor shall appoint by and with
the advice of the Senate, a surgeon and a
neurologist, each of recognized ability, one
for a term of three (3) years and one for a
term of five (5) years, their successors each
to be appointed for the full term of five
years, who in conjunction with the commis-
sioner of charities and corrections shall be
known as and is hereby created the 'Board
of Examiners of Feeble-Minded (including
idiots, imbeciles and morons), Epileptics,
Criminals and other Defectives,' whose duty
it shall be to examine into the mental and
physical condition of the feeble-minded, epi-
leptic, certain criminal and other defective
inmates confined in the several reformatories,
charitable and penal institutions in the coun-
ties and state.
"2. The criminals who shall come within
the operation of this law shall be those who
have been convicted of the crime of rape,
or of such succession of offenses against the
criminal law as in the opinion of this Board
of Examiners shall be deemed to be sufficient
evidence of confirmed criminal tendencies.
3. Upon application of the superintendent
or other administrative officer of any institu-
tion in which such inmates are or may be
confined, or upon its own motion, the said
Board of Examiners may call a meeting to
take evidence and examine into the mental
and physical condition of such inmates con-
fined as aforesaid, and if said Board of
Examiners, in conjunction with the chief
physician of the institution, unanimously find
that procreation is inadvisable, and that there
is no probability that the condition of the
inmate so examined shall improve to such
an extent as to render procreation by such
inmate advisable, it shall be lawful to per-
form such operation for the prevention of
procreation as shall be decided by said Board
of Examiners to be most effective, and there-
upon it shall and may be lawful for any sur-
geon qualified under the laws of this state,
under the direction of the chief physician of
said institution, to perform such operation."
From the order of said board Alice Smith
brought certiorari. It was urged upon the
part of the State that the act in question was
a valid exercise of the police power of the
State. On behalf of the plaintiff it was urged
that the act was in violation of the Four-
teenth Amendment to the Qtnstitution of
the United States. The court sustained de-
fendant's contention, saying:
"This (police) power, stated as broadly as
the argument in support of the order re-
quires," is the exercise by the Legislature of a
state of its inherent sovereignty to enact and
enforce whatever regulations are in its judg-
ment demanded for the welfare of society at
large in order to secure or to guard its
order, safety, health or morals. The general
limitation of such power to which the prose-
cutrix must appeal is that under our system
of government the artificial enhancement of
the public welfare by the forceable suppres-
sion of the constitutional rights of the indi-
vidual is admissible.
"Somewhere between these two funda-
mental propositions the exercise of the police
power in the present cause must fall, and its
assignment to the former rather than to the
latter involves consequences of the greatest
magnitude. For while the case in hand
raises the very important and novel question
whether it is one of the attributes of govern-
ment to essay the theoretical improvement
of society by destroying the function of pro-
creation in certain of its members who are
not malefactors against its laws, it is evident
that the decision of that question carries with
it certain logical consequences, having far-
reaching results. For the feeble-minded and
epileptics are not the only persons in the
community whose elimination as undesirable
DETAILED Review of Litigation — ^Michigan
211
citizens would, or might in the judgment of
the Legislature, be a distinct benefit to so-
ciety. If the enforced sterility of this class
be a legitimate exercise of governmental
power, a wide field of legislative activity and
duty is thrown open to which it would be
difiicult to assign a legal limit.
"If in the present case we decide that such
a power exists in the case of epileptics, the
doctrine we shall have enunciated cannot stop
there. For epilepsy is not the only disease
by which the welfare of society at large is
injuriously affected, indeed, not being com-
municable by contagion or otherwise, it lacks
some of the gravest dangers that attend upon
such diseases as pulmonary consumption or
communicable syphilis. So that it would
seem to be a logical necessity that, if the
Legislature may, under the police power,
theoretically benefit the next generation by
the sterilization of the epileptics of this, it
both may and should pursue the like course
with respect to the other diseases mentioned,
with the additional gain to society thereby
arising from the protection of the present
generation from contagion or contamination.
When these an3 many other diseases that
might be named have been included, the
limits of logical necessity have, by no
means, been reached.
"There are other things besides physical
or mental diseases that may render persons
undesirable citizens, or might do so in the
opinion of a majority of a prevailing Legis-
lature. Racial differences, for instance,
might afford a basis for such an opinion in
communities where that question is unfortu-
nately a permanent and paramount issue.
Even beyond all such considerations it might
be logically consistent to bring the philo-
sophic theory of Malthus to bear upon the
police power to the end that the tendency
of population to outgrow its means of sub-
sistence should be counteracted by surgical
interference of the sort we are now consider-
ing.
"Evidently the late and underlying ques-
tion is, how far is government constitution-
ally justified in the theoretical betterment of
society by means of the surgical sterilization
of certain of its unoffending but undesirable
members? If some, but by no means all, of
these illustrations are fanciful, they still serve
their purpose of indicating why we place the
decision of the present case upon a ground
that has no suqh logical results or untoward
consequences.
"Such a ground is presented by the classi-
fication upon which the present statute is
based, which is of such a nature that the
persons included within it are not afforded
the equal protection of the laws under the
Fourteenth Amendment of the Constitution
of the United States, which provides that
'no state shall deny to any persons within its
jurisdiction the equal protection of the laws.'
Under this provision it has been uniformly
held that a state statute that bears solely
upon a class of persons selected by it must
not only bear alike upon all the individuals
of such class, but that the class as a whole
must bear some reasonable relation to the
legislation thus solely affecting the indi-
viduals that compose it.
" 'It is apparent,' said Mr. Justice Brewer
in Gulf, Colorado, etc., R. Y. Co. vs. Ellis,
165 U. S. 150, 17 Sup. Ct. 255, 41 L. Ed. 666,
after a review of many cases, 'that the mere
fact of a classification is not sufficient to
relieve a statute from the reach of the
equality clause of the Fourteenth Amend-
ment, and that in all cases it must appear,
not only that a classification has been made,
but also that it is one based upon some
reasonable ground — some difference which
bears a just and proper relation to the
attempted classification — and is not a mere
arbitrary selection.'
"This summarizes a mass of cases that
might be cited.
"Turning our attention now to the classi-
fication on which the present statute is based,
and laying aside criminals and persons con-
fined in penal institutions with which we
have no present concern, it will be seen that
— as to epileptics, with which alone we have
to do — the force of the statute falls wholly
upon such epileptics as are 'inmates confined
in the several charitable institutions in the
counties and state.' It must be apparent that
the class thus selected is singularly narrow
when the broad purpose of the statute and
the avowed object sought to be accom-
plished by it are considered. The objection,
however, is not that the class is small as
compared with the magnitude of the purpose
in view, which is nothing less than the
artificial improvement of society at large,
but that it is singularly inept for the
accomplishment of that purpose in this re-
spect, viz., that if suclfi object requires the
sterilization of the class so selected, then a
fortiorari does it require the sterilization of
the vastly greater class who are not pro-
212
DETAI1,ED Review OF IvITIGATlON — MICHIGAN
tected from procreation by their confinement
in state or county institutions.
"The broad class to which the legislative
remedy is normally applicable is that of
epileptics, i. e., all epileptics. "Now, epilepsy
is not, as some authorities contend, mainly
a disease of the well to do and overfed, but
is at least one that affects all ranks of society,
the rich as well as the poor. If it be con-
ceded, for the sake of argument, that the
Legislature may select one of these broadly
defined classes, i. e., the poor — and may
legislate solely with reference to this class,
it is evident that, by the further subclassifi-
cation of the poor into those who are and
those who are not inmates of public chari-
table institutions, a principle of selection is
adopted that bears no reasonable relation to
the proposed scheme for the artificial better-
ment of society. For not only will society
at large be just as injuriously affected by the
procreation of epileptics who are not con-
fined in such institutions as it will be by the
procreation of epileptics who are so con-
fined, but the former vastly outnumber the
latter, and are in the nature of things, vastly
more exposed to the temptation and oppor-
tunity of procreation, which indeed in cases
of those confined in a presumably well-
conducted institution is reduced practically
to nil.
"The particular vice, therefore, of the
present classification is not so much that it
creates subclassification, based upon no
reasonable basis, as that having thereby
arbitrarily created two classes, it applies the
statutory remedy to that one of those classes
to which it has the least and in no event sole
application and to which, indeed, upon the
presumption of the proper management of
our public institutions it has no application
at all. When we consider that such statu-
tory scheme necessarily involves a suppres-
sion of personal liberty and a possible
menace to the life of the individual who must
submit to it, it is not asking too mucli that
an artificial regulation of society that in-
volves these constitutional rights of sonio of
its members shall be accomplished, if at all,
by a statute that does not deny to the per-
sons injuriously affected the equal protection
of the laws guaranteed by the Federal Con-
stitution * * *.
"The conclusion we have reached is that
without regard to the power of the state to
subject its citizens to surgical questions that
shall render procreation by them impossible,
the present statute is invalid, in that it denies
the prosecutrix of this writ the equal protec-
tion of the laws to which under the Constitu-
tion of the United States, she is entitled."
The State vs. Feilen, 126 Pa. 75, 4 L. R. A.
(N. S.) 419. Plaintiff was prosecuted under
Section 2436 of ' Rem. and Bal. Code and
properly convicted. The trial court ordered
that the operation of vasectomy be per-
formed upon plaintiff under the authority
of Section 2287 Rem. and Bal. Code.
Plaintiff contended that the performance of
this operation was cruel and unusual punish-
ment, and that this section of the code au-
thorizing said operation was unconstitutional.
The court held that the performance of the
operation of vasectomy for the punishment
of crime was not a cruel and unusual pun-
ishment, and the statute in question was a
valid one.
In Davis vs. Berry, 216 Fed. 413, the court
had under consideration a statute of Iowa
which authorizes the performance of the
operation of vasectomy on persons twice
convicted of a felony. The court held the
statute unconstitutional on the ground that
it amounted to a denial of due process of
law to the person convictea of one of the
class of crimes for which the operation was
performed as a penalty, the statute in ques-
tion making no provision for a judicial de-
termination of the identity of the person
affected. The court discussed at length the
proposition whether or not the performance
of such an operation for the punishment of
crime is cruel and unusual punishment, and
it is clearly apparent from reading the
opinion that no doubt existed in the mind
of the court but that the performance of
such an operation as this for the punishment
of crime was cruel and unusual punishment.
Davis vs. Berry and State vs. Feilen,
supra, can, of course, be distinguished from
the case at bar, the question involved in
those cases being whether or not the per-
formance of the operation of vasectomy for
a crime amounted to cruel and unusual pun-
ishment while in the instant case the opera-
tion is not performed as a part of the penalty
inflicted for the punishment of a crime.
The foregoing are all the cases we have
been able to discover involving statutes au-
thorizing the performance of the operations
of salpingectomy or vasectomy either as a
punishment for crime or for the purpose of
preventing procreation by that class of per-
sons whose condition is such that the legis-
lature deems procreation by them inadvisable.
Detaii^ed ReviBw of Litigation — Michigan
213
ALEX. J. GROESBECK,
Attorney- General ;
CLARE RETAN,
Assistant Attorney-General;
L. W. CARR,
Assistant Attorney-General.
3. March 28, 1918. The Supreme Court
of Michigan sustained the decision of the
Probate Court of Lapeer County of May 4,
1916, and the Circuit Court of the same
county of September 10, 1917, that the Act
of April 1, 1913, is unconstitutional because
it violates the constitutional guarantee of
equal protection under the laws, and is class
legislation.
e. Decision of the Supreme Court:
STATE OF MICHIGAN.
H. A. HAYNES, Superintend-
ent of Michigan Home &
Training School,
Plaintiff (or Relator). Filed
vs. iMarch 28
WILLIAM B. WILLIAMS, I 1918.
Circuit Judge,
Defendant
(and Respondent). J
BEFORE: The Full Bench, except Fel-
lows, J.
Steere, J.:
In this proceeding by mandamus plaintiff
seeks review and reversal of an order of the
Circuit Court of Lapeer County sustaining
an order of the Probate Judge of that county
refusing to entertain jurisdiction on plain-
tiff's petition for a hearing in the Probate
Court to determine the question of sanity
of an alleged incompetent named Nora
Reynolds, confined in the Michigan Home
and Training School at Lapeer, in said
county, and the necessity of performing
upon her the operation of salpingectomy "as
in other insane cases before such courts,"
under the provisions of Act No. 34 of the
Public Acts of 1913.
The Probate Court dismissed said petition
and on appeal the Circuit Court sustained
the order of dismissal on the ground that
said act is unconstitutional.
The statute in question is entitled, "An
Act to authorize the sterilization of mentally
defective persons maintained wholly or in
part by public expense in public institutions
of this state and to provide a penalty for the
unauthorized use of the operations provided
therefor."
The operations provided for in the act are
(on the male) vasectomy and (on the female)
salpingectomy, "or any other operation or
improvement on vasectomy or salpingectomy
recognized by the medical profession, as the
case may be, upon such person."
By Section 5 of the act, except as author-
ized therein, such operations "unless the
same shall be a medical necessity," are made
a felony punishable by five years' imprison-
ment in the state prison or a fine not to
exceed one thousand dollars, or both in the
discretion of the court.
Briefly summarized this act authorizes the
management of any publicly maintained
institution of the state authorized to hold in
custody individuals who have been adjudi-
cated by a court of competent jurisdiction
mentally defective or insane, to render in-
capable of procreation by the operations
mentioned inmates determined to be proper
subjects for such treatment. The state
boards and physicians and surgeons in
charge of each of said institutions are consti-
tuted a special board with authority to
examine such inmates as are reported by the
warden, or medical superintendent, to be
persons by whom procreation would be in-
advisable and upon the report of insanity
experts examine into the physical and mental
condition of such persons, etc., determine
the advisability of such operation upon them.
At least 30 days' notice of the proceeding
must be given the parent or guardian of such
mentally defective person before performing
the operation, such notice specifying the
purpose, time and place of such examination.
If the parent or guardian object, the matter
must be referred to the Probate Court of the
county in which the institution is located,
which is then required to determine as in
other cases the question of sanity and neces-
sity of the operation. When authorized the
operation is to be performed either by the
physician of the institution or an expert
employed by the board for that purpose after
a report has been secured from two qualified
physicians that such operation is desirable
in the interest of the patient or the good of
the community. A record, not for public
inspection, is required to be made in relation
to each individual so operated upon and filed
with the State Board of Public Health.
Acting under the provisions of this act
the Board of Control of the Michigan Home
and Training School and plaintiff, its medi-
cal superintendent, as a special board for
214
Detaii^ed Review OF Litigation — Michigan
that purpose, took the proper steps and made
the requisite determination for performing
the operation of salpingectomy upon said
Nora Reynolds. Notice of such proceedings
was served upon John Roach, her guardian,
who interposed written objections contend-
ing that the act was unconstitutional and
void on various grounds. Petition was
thereupon filed in the Probate Court by
plaintiff as superintendent of said institution
asking that the sanity of said inmate and
necessity for the proposed operation be there
determined, with the result already stated.
As appears by return to the order to show
cause issued from this court the learned
Circuit Judge, in an opinion sustaining the
refusal of the Probate Court to take juris-
diction, expressed the view that the results
sought to be reached by the act were com-
mendable and to be desired but as framed
and enacted it "'so limits the class of feeble-
minded persons who may be brought within
its provisions as to almost entirely subvert
its object and make it clearly class legisla-
tion," and therefore unconstitutional.
The only brief filed or argument offered
in this proceeding is by the Attorney-Gen-
eral as amicus curiae, apparently conceding
the unconstitutionality of the act and con-
curring in the views expressed by the Cir-
cuit Judge that the validity of the legislation
cannot be sustained in its present form be-
cause of the narrow and arbitrary classifica-
tion adopted.
The only question argued or raised in this
procee"ding against the validity of the law
being that it is capricious and discriminating
class legislation, there is no occasion to
dwell or pass upon any suggested underlying
medico-legal questions to which the indicated
purpose of the law points and which within
constitutional limits are for legislative rather
than judicial consideration. That line of
inquiry in the field of forensic medicine has
only incidental relation to the question here
involved.
It is elementary that legislation which, in
carrying out a public purpose for the
common good, is limited by reasonable and
justifiable differentiation to a distinct type
or class of persons is not for that reason
unconstitutional, because class legislation if
germane to the object of the enactment and
made uniform in its operation upon all per-
sons of the class to which it naturally
applies; but if it fails to include and affect
alike all persons of the same class, and ex-
tends immunities or privileges to one portion
and denies them to others of like kind, by
unreasonable or arbitrary sub-classification,
it comes within the constitutional prohibi-
tion against class legislation. For the
purpose of this case we need go no further
into the subject of class legislation than to
point out this distinction. ■ For an able
amplification of the topic, with abundant
citation of sustaining cases, reference may
be made to Vol. 6 of Ruling Case Law, sub-
page 373 et seq.
Plainly stated, the manifest purpose and
only justification for this legislation is to
promote, under the police power of the state,
the general welfare of the human race by a
step in the line of selective breeding to be
effected through sterilization of those found
and adjudicated by a designated tribunal to
be hopelessly insane and mentally defective
to such an extent that, in connection with
their personal record and family history, pro-
creation by such persons is inadvisible and
inimical to public welfare.
Conceding, for the purpose of this inquiry,
that such legislation is a proper govern-
mental function and within the police power
of the state, the question naturally arises —
what logical connection with the object
sought by this enactment has a classification
which carves a class out of a class and
applies the proposed curative treatment,
which it is found the public weal demands
and justifies, only to those of the type re-
quiring such exclusive legislation who, by
reason of their sequestration under public
control, are presumably helpless to work
upon those now in being or posterity the
mischief which the law is framed to elimi-
nate ?
"The legislature cannot take what might
be termed a natural class of persons, split
the same in two and then designate the dis-
severed factions of the original unit as two
classes, and thereupon enact different rules
for the government of each." — 6 R. C. L.,
p. 383.
In this enactment the legislature selected
out of what might be termed a natural class
of defective and incompetent persons ohly
those already under public restraint, leaving
immune from its operation all others of like
kind to whom the reason for the legislative
remedy is normally and equally, at least,
applicable, extending immunities and privi-
leges to the latter which are denied to the
former.
While legislation is to be found in a few
other jurisdictions providing for sterilization
De;taii,Ed Review of Litigation — Michigan
215
of designated abnormal classes by whom
procreation is deemed inadvisable, either
because mentally defective or of certain con-
firmed criminal tendencies, but two cases are
cited or found where the subject has been
before a court of last resort.
In State v. Feilen, 126 Pac. Reporter, 75 (41
L. R. A. [N.S.] 419), defendant was convicted
in a trial court of the state of Washington of
statutory rape upon a female child and sen-
tenced under authorizing statutes of that state
to imprisonment in the penitentiary for life, and
in addition thereto that the operation of vasec-
tomy, for prevention of procreation, be per-
formed upon him by some qualified and capable
surgeon, "carefully and scientifiically" under
procurement by the Warden of the penitentiary.
The constitutionality of the statute authorizing
this portion of the sentence was attacked on
the ground that it provided for cruel and un-
usual punishment. In a carefully considered
review of the subject the Court reached the
conclusion that such operation when properly
performed involved little pain and danger,
was not of that class of "severe, cruel and
unusual punishments as disgraced the civili-
zation of former ages," and declined to hold
the law unconstitutional.
That case, while illuminating in some re-
spects, involved primarily a question foreign to
the issue before us, and is of but remote appli-
cation, for under the statute involved here the
proposed operation is not provided as a penalty
in punishment of crime.
A sterilization law was enacted in the state of
New Jersey in 1911, to which our act (No. 34
of 1913) is analogous in purpose and similar in
various provisions, although that law extends
the scope of its provided curative treatment to
convicted rapists and other criminals convicted
of such a succession of crimes as in the opinion
of the authorized determining board are found
stamped with confirmed criminal tendencies. It
was entitled "An act to authorize and provide
for the sterilization of feeble-minded (includ-
ing idiots, imbeciles and morons), epileptics,
rapists, certain criminals and other defectives."
As particularly in point here, its operation was
confined to inmates of the "several reforma-
tories, charitable and penal institutions in the
various counties and state.'' The constitution-
ality of the law was attacked on various
grounds in a case involving the proposed oper-
ation of salpingectomy on an epileptic female
named Alice Smith, an inmate of one of the
designated institutions, found by the board to
be permanently so afflicted that procreation by
her was inadvisable. The court of last resort
in that state held the law unconstitutional for
the same reason urged in this inquiry. Smith
V. Board of Examiners of Feeble-Minded, 88
Atl. 963. Passing by certain reflections and
moot suggestions in that case which need not
be endorsed or considered for the purpose of
the question before us, the following clearly
stated reasons for holding the law invalid as
discriminating class legislation are well in point.
"It must be apparent that the class thus se-
lected is singularly narrow when the broad pur-
pose of the statute and the avowed object
sought to be accomplished by it are considered.
The objection, however, is not that the class is
small as compared with the magnitude of the
purpose in view, which is nothing less than the
artificial improvement of society at large, but
that it is singularly inept for the accomplish-
ment of that purpose in this respect, viz., that
if such object requires the sterilization of the
class so selected, then a fortiorari does it
require the sterilization of the vastly
greater class who are not protected from
procreation by their confinement in state or
county institutions. The broad class to which
the legislative remedy is normally applicable is
that of epileptics, i. e., all epileptics. * * * If
it be conceded, for the sake of argument, that
the legislature may select one of these broadly
defined classes — i. e., the poor — and may legis-
late solely with reference to this class, it is evi-
dent that, by the further sub-classification of
the poor into those who are and those wl)o are
not inmates in public charitable institutions, a
principle of selection is adopted that bears no
reasonable relation to the proposed scheme for
the artificial betterment of society. For not
only will society at large be just as injuriously
affected by the procreation of epileptics who
are not confined in such institutions as it will
be by the procreation of those who are so con-
fined, but the former vastly outnumber the
latter, and are, in the nature of things, vastly
more exposed to the temptation and opportunity
of procreation, which indeed in cases of those
confined in a presumably well conducted public
institution is reduced practically to nil."
For the foregoing reasons we are constrained
to concur in the opinion of the learned Circuit
Judge that this law as framed does not afford,
in its scope, those affected by it that equal pro-
tection under the laws guaranteed by the con-
stitution, and so limits the class of defectives
covered by its provisions as to be clearly class
legislation without substantial distinction within
constitutional inhibition.
The writ of mandamus prayed for is
therefore denied.
CHAPTER VII. (Continued)
PART V. NEW YORK.
1. State Board of Examiners.
a. Origin of Test Case 217
2. Supreme Court, Albany County.
a. Affidavit and Order Appointing Counsel 317
b. Summons and Complaint 219
c. Answer ' 221
d. Findi-ngs of Fact and Conclusions of Law 221
e. Exceptions of Defendant to Conclusions of Law 222
f. Opinion of Rudd, J 222
g. Judgment of Supreme Court 227
h. Notice of Appeal 228
i. Stipulation for Settlement of Case 228
j. Order Settling Case 229
k. Stipulation Waiving Certification 229
3. Appellate Division, Supreme Court.
a. Brief for Plaintiff-Respondent 229
b. Decision 234
4. Court of Appeals.
a. Brief on Behalf of Defendants 234
b. Case Pending at Time of Repeal of Statute 241
DbtailEd ReviBw of Litigation — New York
217
(V.) NEW YORK.
(Chapter 445, April 16, 1913.)
Similarly to the New Jersey statute, the
New York law required a court review of
each particular case nominated for steriliza-
tion.
1. STATE BOARD OF EXAMINERS.
In the spring of 1915, the Board of Exam-
iners of Feeble-minded (including Idiots,
Imbeciles and Morons), Epileptics and
Other Defectives, made their first move.
No records wert kept of their meetings, nor
were the members upon formal request able
to supply any data from memory. The only
documentary evidence of their official activ-
ity prior to the court procedure in the test
case was found in the auditors' records of
their expenditures.
a. Origin of Test Case. Litigation grew
out of informal agreement made in the
Spring of 1915 between the Board of Exam-
iners of Feeble-minded (including Idiots,
Imbeciles and Morons), Epileptics and
Other Defectives on the one part, and the
Rome Custodial Asylum on the other, that
Frank Osborn, a feeble-minded inmate of .
said asylum, about 32 years of age, and
known to belong to a family of degenerates,
be made the subject of a test case. The
trial was begun September 17, 1915, and
hearings were had at intervals covering a
period of several months.
2. SUPREME COURT, ALBANY
COUNTY.
On March. 5, 1914, Mr. Justice Rudd of
the Supreme. Court, Albany County, handed
down an opinion declaring the Act unconsti-
tutional on the ground that "the provisions
of the Federal Constitution, to which this
law is oflfensive, is that part of the Four-
teenth Amendment which declares 'that
no state * * * shall deny to any person
within its jurisdiction the equal protection of
the laws.' " The opinion reviewed the testi-
mony of the witnesses, and Judge Garrison's
decision on the New Jersey law. In reference
to a possible punitive aspect Mr. Justice
Rudd held "the operation upon feeble-
minded is in no sense in the nature of a
penalty, and therefore, whether it is unusual
and cruel punishment, is not involved."
The principal documents of the case
follow:
SUPREME COURT,
ALBANY COUNTY.
(103 Misc. Rep. 33.)
(169 N. Y. Sup. 638.)
(171 N. Y. Sup. 1094.)
a. Affidavit and Order Appointing Counsel.
In the Matter of the Application of
LEMON THOMSON, M. D.,
and CHARLES H. ANDREWS,
M. D., and WILLIAM J. WANS-
BORO, M. D., Composing the
Board of Examiners of Feeble-
minded, Criminals and Other De-
fectives, Appointed Pursuant to
Section 350 of the Public Health
Law of the State of New York,
for the Appointment of Counsel
to Represent FRANK OSBORN,
a Person to be Examined Pur-
suant to Section 353 of the Public
Health Law.
On reading the annexed affidavit of Lemon
Thomson, M. D., by which it appears that
the State Board of Examiners of Feeble-
minded Criminals and other Defectives have
examined into the mental and physical condi-
tion of Frank Osborn, now confined in the
Rome Custodial Asylum, and have decided
that it is advisable to perform an operation
upon him for the prevention of procreation,
and in pursuance to Sections 351 and 353
of the Public Health Law, I hereby appoint
Ellis J. Staley, Esq., counselor at law, of
the City of Albany, N. Y., to represent said
Frank Osborn, and said Staley is to act at a
hearing before me and in any subsequent
hearings, for said Frank Osborn, which hear-
ing I fix for the 13th day of June, 1915, at
ten thirty o'clock in the forenoon, or as soon
thereafter as I can hear counsel, at the place
for holding special term in the City Hall,
Albany, N. Y.
I direct that this order be filed with the
clerk of Albany County and a copy served
upon said Staley, counsel appointed to repre-
sent said Frank Osborn, within ten days
from this date, and that proof of service of a
copy of the order be served on the said
Staley.
The compensation to be allowed said
counsel shall be twenty dollars a day, while
he is actually engaged in this matter.
Dated, June 3, 1915.
ALDEN CHESTER,
Justice Supreme Court.
218
Dbtailbd Review of Litigation — New York
SUPREME COURT,
ALBANY COUNTY.
In the Matter of the Application of
LEMON THOMSON, M. D.,
CHARLES H. ANDEWS, M .D.,
and WILLIAM J. WANS-
BORO, M. D., Composing the
Board of Examiners of Feeble-
minded Criminals and Other De-
fectives, Appointed Pursuant to
Section 350 of the Public Health
Law of the State of New York,
for the Appointment of Counsel
to Represent FRANK OSBORN,
a Person to be Examined Pur-
suant to Section 352 of the Public
Health Law.
STATE OF NEW YORK,
County of Albany, ss:
Lemon Thomson, being duly sworn, says:
I reside in the City of Glen Falls, N. Y.
I was appointed by the Governor of the
State of New York a member of the Board
of Examiners of Feeble-minded Criminals
and .other Defectives, pursuant to Chapter
445 of the Laws of 1912, which law has
become Article XIX of the Public Health
Law. The other members of the Board are
Charles H. Andrews, M. D., and William J.
Wansboro, M. D., and said Andrews, Wans-
boro and myself are now acting members
of said Board of Examiners.
Section 351 of the Public Health Law
prescribes the general powers and duties of
our Board. It authorizes us to examine into
the mental and physical condition and the
record and family history of the feeble-
minded, epileptic, criminal and other defec-
tive inmates confined in the several State
hospitals for the insane, state prisons, re-
formatories and charitable and penal institu-
tions in the State and if, in the judgment of
the majority of said. Board, procreation by.
any such person would produce children with
an inherited tendency to crime, insanity,
feeble-mindedness, idiocy or imbecility, and
there is no probability that the condition of
any such person so examined will improve
to such an extent as to render procreation
by any such person advisable, or that the
physical or mental condition of any such
person will be substantially improved
thereby, then our Board shall appoint one of
its members to perform such operation for
the prevention of procreation as shall be
decided by said Board to be most effective.
By Section 352 of the same law, before
any such operation is performed, our Board
is required to apply to any judge of the
Supreme Court or county in which such
person is confined, for the appointment of
counsel to represent the person to be ex-
amined, said counsel to act at a hearing
before the judge and in any subsequent pro-
ceedings, and no order made by said Board
shall become effective until five days after
it shall have been filed with the clerk of the
court and a copy shall have been served
upon the counsel appointed to represent the
person examined, and proof of service of
said copy of the order to be filed with said
clerk of the court.
The Board came into existence by the
appointment of its members in 1912. Dr.
Andrews and myself have continued as
members of the Board of Examiners since
its inception. Dr. Wansboro succeeded Dr.
Hennessey, and Dr. Hennessey succeeded
Dr. Duryee. No operations have ever been
performed pursuant to said Sections 351 and
352 and no application has ever been made
to the court for the appointment of counsel
to represent persons to be operated upon,
and so far as I know, the law has never been
.passed upon by the courts of this State.
The Board has made an examination of
one Frank Osborn, who is about twenty-two
years of age, and was sent to the Rochester
Industrial Institution in 1907, and from there
to the Rome Custodial Asylum, at Rome,
where he is now confined. He has cost the
State, while in its institutions, approximately
$2,000, up to October 1, 1914, and since that
time has been an expense to the State of
about $175 per year. After a careful examin-
ation by the Board we have learned that said
Frank Osborn comes from a family of de-
generates. He is one of sixteen children,
eight of whom are dead. Five brothers and
sisters besides himself are confined in State
institutions for the feeble-minded; one, a
feeble-minded brother, lives with a farmer
and is intemperate, incapable and untrust-
worthy; one sister, the brightest of the
family, lives with and keeps house for a man
to whom she is not married, though she has
a husband living. She is immoral and has
been an inmate for two years of a house of
prostitution. Of his dead brothers and sis-
ters one died in an institution for feeble-
minded and seven died before becoming one
year of age. The father of said Frank
Osborn was feeble-minded and the son of a
man who was an epileptic and who lost his
Detaii^ed Review o? Litigation — New York
219
mind before death. Said Frank Osborn's
mother is living, is feeble-minded and comes
from a family of defectives. Her mother
was feeble-minded and one sister and two
brothers of Frank's mother were feeble-
minded.
The family of Osborn, from which Frank
Osborn comes, have always been a charge
to either the county or the State, and the>
have cost the State approximately $10,000
since they became State charges.
The sources of our information are exam-
inations of individual records, examination
of said Frank Osborn and members of his
family, relatives and neighbors who have
been intimately acquainted with his family
during their lifetime.
The said board have carefully examined
into said Frank Osborn's mental and physical
condition and it is the judgment of a ma-
jority of said board that procreation by said
Frank Osborn would produce children with
an inherited tendency to feeble-mindedness,
and there is no probability that his condi-
tion will improve to such an extent as to
render procreation advisable. His physical
condition is such that no harm will come to
him, so far as the board is able to ascertain,
from the operation.
If said Frank Osborn was operated upon
so that he could not procreate, in my opinion
he would be able to earn his living if placed
in the care and custody of some other
person, but without such an operation,
it would be inadvisable to release him, even
under such circumstances.
Before the operation is performed on said
Frank Osborn, your board asks, in accord-
ance with the provisions of said Section 352
of the Public Health Law, that the court
appoint counsel to represent him.
I also ask that a hearing be had before
the judge who signs the order for which
I am now applying and that said counsel be
instructed to represent said Frank Osborn
upon such hearing.
I therefore apply for an order in accord-
ance with said Section 353 of the Public
Health Law.
No previous or other application has been
made to any judge for the order herein
asked for.
LEMON THOMSON.
Subscribed and sworn to before me this 1st
day of June, 1915.
W. M. THOMAS, •
Notary Public,
Albany, N. Y.
b. Summons and Complaint.
SUPREME COURT,
COUNTY OF ALBANY.
FRANK OSBORN,
Plaintiff,
against
LEMON THOMSON, CHARLES
H. ANDREWS and WILLIAM
J. WANSBORO, composing the
Board of Examiners of Feeble-
Minded, Criminals and other De-
fectives,
Defendants.
To the Above-named Defendants:
You are hereby summoned to answer the
complaint in this action, and to serve a copy
of your answer on the plaintiff's attorney
within twenty days after the service of this
summons, exclusive of the day of service;
and in case of your failure to appear or
answer, judgment will be taken against you
by default for the relief demanded in the
complaint.
Trial to be held in the County of Abany.
Dated, July 19, 1915.
ELLIS J. STALEY,
Plaintiff's Attorney.
Office and Postoffice address: 95 State St.,
Albany, N. Y.
SUPREME COURT,
ALBANY COUNTY.
FRANK OSBORN,
Plaintiff,
against
LEMON THOMSON, CHARLES
H. ANDREWS and WILLIAM
J. WANSBORO, composing the
Board of Examiners of Feeble-
Minded, .Criminals and other De-
fectives,
Defendants
The plaintiff, complaining of the defend-
ants, alleges, upon information and belief:
First: That the plaintiff is a resident of
the State of New York, a citizen of the
United States of America and of the age of
twenty-two years.
Second: That on or about the 16th day
of April, 1912, a certain bill which had been
theretofore duly passed by the Senate and
Assembly of the State of New York, was
signed by the Governor of said State and
220
Detahbd ReviBw of Litigation — New York
filed in the office of the Secretary of State
as an Act of the Legislature, being known
as Chapter 445 of the Laws of 1913, a copy
of which said Act is hereunto annexed marked
"Schedule A."
Third: That pursuant to the provisions
of said Chapter 445 of the Laws of 1912,
Lemon Thomson, M. D., Charles H. An-
drews, M. D., and William J. Wansboro,
M. D., were appointed as members of the
Board of Examiners of Feeble-minded,
Criminals and other Defectives, and at all
the times hereinafter mentioned did, and now
do, compose the said Board of Examiners
of Feeble-minded, Criminals and other De-
fectives.
Fourth: That the said Act, Chapter 445
of the Laws of 1913, in many respects vio-
lates the Constitution of the United States
and does not secure the blessings of liberty
to the citizens of the United States and their
posterity as therein guaranteed, and is there-
fore, unconstitutional and void, and particu-
larly in that it violates Section 10 of Article
I thereof in being a Bill of Attainder and an
ex post facto law; subdivision 3 of Section 3
of Article III in depriving citizens of the
right to trial by jury; Section 3 of Article IV
in depriving citizens of the State of New
York of privileges and immunities to which
citizens of other states are entitled; Article
V of the amendments to said Constitution
in compelling a citizen to be a witness against
himself and depriving citizens of life, liberty
and property, without due process of law;
Article VIII of said amendments in author-
izing the infliction of cruel and unusual pun-
ishment; Section 1 of Article XIV of said
amendments in abridging privileges and
immunities of citizens and depriving persons
of life, liberty and property without due
process of law and denying to persons within
its jurisdiction the equal protection of the
laws.
Fifth: That the said Act, Chapter 445 of
the Laws of 1913, in many respects violates
the Constitution of the State of New York
and does not secure the blessings of freedom
to the people of said State, as therein guar-
anteed, and is therefore, unconstitutional and
void, and particularly in that it violates Sec-
tion 1 of Article I thereof in depriving citi-
zens of rights and privileges without the law
of the land; Section 3 of Article I thereof
in depriving citizens of the right to trial by
jury; Section 5 of said Article I thereof in
authorizing the infliction of cruel and un-
usual punishment; Section 6 of said Article
I thereof in depriving persons of life, liberty
and property, without due process of law,
and Section 1 of Article VI thereof in con-
ferring upon a board or commission and a
justice of the Supreme Court or certain
county judges, powers exclusively vested in
the Supreme Court.
Sixth: That this plaintiff is, and for
several months last past, has been, confined
in the Rome Custodial Asylum, a State chari-
table institution, at Rome, N. Y., and that
while so confined therein was examined by
the defendants herein, and that said defend-
ants composing the said Board of Examiners,
threatened to have performed, and are about
to perform, an operation upon this plaintiff
for the prevention of procreation pursuant to
the power and authority so attempted to be
conferred as aforesaid, by the provisions of
said Act, known also as Article XIX of the
Public Health Law; and that in pursuance
of its said purpose so to perform said opera-
tion upon this plaintiff, the said defendants
presented through the Attorney-General of
the State of New York, an application to the
Hon. Alden Chester, a justice of the Supreme
Court, for the appointment of counsel to
represent this plaintiff pursuant to Section
352 of said Act, and that an order was ac-
cordingly made thereon by said justice
appointing Ellis J. Staley, counselor at law,
of the City of Albany, N. Y., as such counsel.
Seventh: That unless said defendants are
enjoined and restrained from so performing,
or causing to be performed, the said threat-
ened operation, this plaintiff will suffer irrep-
arable injury and damage for which no
adequate remedy at law exists.
Wherefore, the plaintiff demands judgment
that the said defendants, composing the said
Board of Examiners, and each of them, and
their successors in office, be perpetually en-
joined and restrained from performing or
permitting to be performed the aforesaid
threatened operation and that during the
pendency of this action the said defendants
be enjoined and restrained from performing,
or permitting to be performed, said threat-
ened operation; and that plaintiff may have
such other or other and further relief as
may be just, together with costs of this
action.
ELLIS J. STALEY,
Attorney for Plaintiff.
Office and Postoffice Address: 95 State St.,
Albany, N. Y.
DETAILED Review of Litigation — New York
221
STATE OF NEW YORK,
■COUNTY OF ALBANY, ss:
Ellis J. Staley, being duly sworn, says that
he is the attorney for the plaintiff herein;
that he has read the foregoing complaint and
knows the contents thereof, that the same is
true of his own knowledge except as to the
matters therein stated to be alleged upon
information and belief and that as to those
matters he believes it to be true.
Deponent further says, that the reason
why this verification is made by deponent
and not by the plaintiff is that the plaintiff
is not now within the County of Albany,
which is the county within which deponent
resides and has his office, and that the
sources of deponent's information and
grounds of his belief are an examination
of an affidavit of the defendant Thomson
verified June 1, 1915, and filed in the Albany
County Clerk's office, and conversations had
by a representative of deponent with the
plaintiff relating to the matters set forth in
said complaint.
ELLIS J. STALEY.
Sworn to before me this 19th day of July,
1915.
G. LEROY BUTLER,
Notary Public,
Albany, N. Y.
c. Answer.
SUPREME COURT,
ALBANY COUNTY.
FRANK OSBORN,
Plaintiff,
against
LEMON THOMSON, CHARLES
H. ANDREWS and WILLIAM
J. WANSBORO, composing the
Board of Examiners of Feeble-
Minded, Criminals and other De-
fectives,
Defendants.
The defendants for an answer to the com-
plaint of the plaintiff herein:
First: Deny upon information and belief
the allegations set forth in paragraphs
"Fourth," "Fifth," and "Seventh" of the
complaint.
Wherefore, defendants demand judgment
dismissing the complaint, with costs.
Dated, September 3, 1915.
EGBURT E. WOODBURY,
Attorney-General and
Attorney for the Defendants.
Office and Postoffice Address: Capitol,
Albany, N. Y.
STATE OF NEW YORK,
COUNTY OF ALBANY, ss:
Lemon Thomson, being duly sworn, says:
I am one of the defendants in the above
entitled action. I have read the foregoing
answer and know the contents thereof, and
the same is true of my knowledge except
as to the matter therein stated to be alleged
upon information and belief, and that as to
those matters I believe it to be true.
LEMON THOMSON.
Sworn to before me this 7th day of Sep-
tember, 1915.
FLORENCE E. BUSHWELL,
Notary Pulplic,
Albany County.
d. Findings of Fact and Conclusions of
Law.
At a Special Term of the Supreme Court
of the State of New York held at the City
of Albany, N. Y., on the 17th day of Sep-
tember, 1915.
Present: HON. WILLIAM P. RUDD,
Justice.
SUPREME COURT,
COUNTY OF ALBANY.
FRANK OSBOR.N,
Plaintiff,
against
LEMON THOMSON, CHARLES
H. ANDREWS and WILLIAM
J. WANSBORO, composing the
Board of Examiners of Feeble-
Minded, Criminals and other De-
fectives,
Defendants.
The issues in this action coming on to be
tried by the court at the above Special Terra
held by the undersigned, without a jury, and
having been tried commencing on the 17th
day of September, 1915, and the allegations
and evidence of the parties having been
heard; now, after hearing Ellis J. Staley,
attorney for plaintiff, and J. Sheldon Frost
of counsel and Wilber W. Chambers, Deputy
Attorney-General of counsel for the defend-
ants; due deliberation having been had; I
find and decide as follows:
FINDINGS OF FACT.
First: That the plaintiff is a resident of
the State of New York, a citizen of the
United States of America, and of the age of
twenty-two years.
Second: That on or about the 16th day
of April, 1912, a certain bill which had been
222
DETAILED Review op Litigation — New York
theretofore duly passed by the Senate and
Assembly of the State of New York, was
signed by the Governor of said State and
filed in the office of the Secretary of State
as an Act of the Legislature, the same being
known as Chapter 445 of the Laws of 1912.
Third: That pursuant to the provisions
of said Chapter 445 of the Laws of 1912,
Lemon Thomson, M. D., Charles H. An-
drews, M. D., and William J. Wansboro,
M. D., the defendants herein, were appointed
as members of the Board of Examiners of
Feeble-Minded, Criminals and other Defec-
tives, and now compose the said board of
examiners of feeble-minded, criminals and
other defectives.
Fourth: That said Frank Osborn is, and
since 1907 has been confined as an inmate in
the Rome Custodial Asylum, a State chari-
table institution located at Rome, New York,
and is a person physically strong but men-
tally defective and in the class known as
feeble-minded, possessing a mental capacity
according to the Binet test of about eight
years.
Fifth: That shortly prior to the com-
mencement of this action the said Board of
Examiners pursuant to the said act examined
into the mental and physical condition and
the record and family history of said Frank
Osborn and determined that procreation by
him would produce children with an inherited
tendency to feeble-mindedness; that there
was no probability that this condition would
improve to such an extent as to render pro-
creation advisable and prepared for the per-
formance of the operation of vasectomy
upon him.
Sixth: That the said Board of Examiners,
unless restrained by this court, will cause
to be performed upon said Frank Osborn,
the aforesaid operation.
CONCLUSIONS OF LAW.
First: That the plaintiff, Frank Osborn,
has no adequate remedy at law for the afore-
said threatened injuries and damage.
Second: The Chapter 445 of the Laws of
1912, known as Article XIX of the Public
Health Law, is unconstitutional and invalid.
Third: That the defendants, Lemon
Thomson, Charles H. Andrews and William
J. Wansboro, composing the Board of Ex-
aminers of feeble-minded, criminals and
other defectives, and each of them and their
agents, representatives and successors in
office be perpetually enjoined and restrained
from performing or permitting to be per-
formed the aforesaid threatened operation.
Fourth: That the plaintiff recover of the
defendants the costs and disbursements of
this action to be taxed by the clerk.
Judgment in accordance with the fore-
going is hereby directed.
WM. P. RUDD,
Justice Supreme Court.
e. Exceptions of Defendant to Conclusions
of Law.
SUPREME COURT,
COUNTY OF ALBANY.
FRANK OSBORN,
Plaintiff,
against
LEMON THOMSON, CHARLES
H. ANDREWS and WILLIAM
J. WANSBORO, composing the
Board of Examiners of Feeble-
Minded, Criminals and other De-
fectives,
Defendants.
The defendants hereby except to the con-
clusions of law made by Hon. William P.
Rudd, Justice of the Supreme Court, and
filed in the office of the clerk of the County
of Albany on the 8th day of March, 1918, as
follows :
First: Except to the conclusion of law
marked "First."
Second: Except to the conclusion of law
marked "Second."
Third: Except to the conclusion of law
marked "Third."
Fourth: Except to the conclusion of law
marked "Fourth."
Dated, March 10th, 1918.
Yours, etc.,
MERTON E. LEWIS,
Attorney-General and
Attorney for Defendants.
Office and Postoffice Address: Capitol,
Albany, N. Y.
To:
HON. ELLIS J. STALEY,
Attorney for Plaintiff, 93 State St.,
Albany, N. Y.
HON. LUTHER C. WARNER,
County Clerk of Albany County.
f. Opinion of Rudd, J.
SUPREME COURT,
ALBANY COUNTY.
Detailed Review of Litigation — New York
223
In the Matter of the Application of
LEMON THOMSON, M. D.,
.CHARLES H. ANDREWS,
M. D., and WILLIAM J. WANS-
BORO, M. D., composing the
Board of Examiners of Feeble-
Minded, Criminals and Other De-
fectives, appointed pursuant to
Section 350 of the Public Health
Law of the State of New York,
for the appointment of counsel
to represent Frank Osborn, a
person to be examined pursuant
to Section 353 of the Public
Health Law.
Merton E. Lewis, Esq., Attorney- General,
for the Applicants.
Wilber W. Chambers, Esq., Deputy Attor-
ney-General, of Counsel.
Ellis J. Staley, Esq., Attorney for Re-
spondent.
J. Sheldon Frost, Esq., of Counsel.
SUPREME COURT,
ALBANY COUNTY.
FRANK OSBORN,
Plaintiffs,
against
LEMON THOMSON, CHARLES
H. ANDREWS and WILLIAM
J. WANSBORO, composing the
Board of Examiners of Feeble-
minded, Criminals and Defectives,
Defendants.
Ellis J. Staley, Esq., Attorney for Plaintiff.
J. Sheldon Frost, Esq., of Counsel.
Merton E. Lewis, Esq., Attorney-General,
for the Defendants.
Wilber W. Chambers, Esq., of Counsel.
Trial had before William P. Rudd, Justice
of the Supreme Court, at Special Term,
under Stipulation signed by the Attorneys
representing the respective parties.
MEMORANDUM.
Rudd, J.: Chapter 445 of the Laws of
1913 is an act amending the Public Health
Law by adding Section 19 thereto, in relation
to operations for the prevention of procre-
ation. It provides in substance as follows:
1. The appointment of a Board of Exam-
iners consisting of one surgeon, one neurol-
ogist and one practitioner of medicine to be
known as the Board of Examiners of Feeble-
minded, Criminals and other Defectives.
3. Making it the duty of this board to
examine into the mental and physical condi-
tion and the record and family history of
the feeble-minded, epileptic, criminals and
other defectives confined as inmates in the
several State hospitals for the insane. State
prisons, reformatories, and charitable and
penal institutions of the State, and if, in the
judgment of the majority of said board, pro-
creation by any such person would produce
children with an inherited tendency to crime,
insanity, feeble-mindedness, idiocy or imbe-
cility, and that there is no probability that
the condition of any such person will improve
to such an extent as to render procreation
by any such person advisable, or if the
physical or mental condition of such person
will be substantially improved thereby, that
then the board shall appoint one of its mem-
bers to perform such operation for the pre-
vention of procreation as shall be decided
by said board to be most effective.
The criminals who shall come within the
operation of this law shall be those who have
been convicted of the crime of rape or of
such succession of offenses against the
Criminal Law as in the opinion of the board
shall be deemed in the criminal examined to
be sufficient evidence of confirmed criminal
tendencies.
3. It is the duty of this board to apply
to any Judge of the Supreme Court or
County Judge of the county in which said
person is confined for the appointment of
counsel to represent the person to be ex-
amined. The counsel shall act for such
person at a hearing before the judge or in
any subsequent proceedings, and no order
made by the board shall become effective
until five days after it shall hav been filed
with the clerk of the court and a copy shall
have been served upon the counsel appointed
to represent the person examined. Orders
made by the board are subject to review by
the Supreme Court or any justice thereof.
Under this law a Board of Examiners was
appointed consisting of the petitioners herein.
Such board determined to perform the oper-
ation known as vasectomy upon Frank
Osborn, an inmate of the Rome Custodial
Asylum, 23 years of age, strong physically,
who has been an inmate of that institution
for several years, and who is in the class
known as feeble-minded.
As indicated by the title above, Frank
Osbcsrn through counsel appointed by Mr.
Justice Chester, began action against the
members constituting the Board of Exam-
224
DbtaiIvI^d Review oif Litigation — New York
iners asking a permanent injunction restrain-
ing the carrying out of the determination
of the board with reference to an operation
upon him; and in the action thus brought
are raised questions as to the constitutional-
ity of the act.
We have under consideration the questions
which have arisen in review of the deter-
mination of the board and those which result
from the challenge by the counsel of Frank
Osborn, against the constitutionality of the
act. We will first consider the determination
of the board. ^
Dr. Lemon Thomson, one of the Board of
Examiners, testified in substance that the
board had selected Frank Osborn after
learning as to his family and after sub-
mitting him to a somewhat superficial exam-
ination physically and mentally; and that
such selection was made because in the
opinion of the commission Osborn could not
probably procreate normal offspring. His
was what the Board of Examiners thought
a bad case.
Dr. Thomson says that he has never per-
formed the operation of vasectomy for ster-
ilization; that in his opinion no benefit would
come to the patient from the operation so
far as rendering him free from the dangers
of the infection of a venereal disease; that
the operation would not weaken' in Frank
Osborn the tendency of the rapist.
Dr. Andrews, a member of the Board of
Examiners, testified that he had never per-
formed the operation, and that he had never
seen it performed; and while the statute re-
quired that the board should determine upon
the operation which would be most effective,
he stated that vasectomy would not be the
most effective operation but, on the other
hand, that castration would be. He further
testified that he had not given any study to
any particular phase of this question.
Dr. Wansboro, of the Board of Examiners,
was not called.
Dr. Bernstein, superintendent of the Rome
Custodial Asylum, where Frank Osborn has
been, as an inmate, since H)07, Smd in which
there are cared for over 1,300 patients, testi-
fied that Osborn was of a higher grade of
feeble-mindedness; that the actual number
of feeble-minded in our state had not propor-
tionately increased in 35 years; that because
of the demands of society there developed
many social failures; that there had been a
persistent demand for the removal of such
individuals from temptations in the commu-
nity; and these social failures are forced upon
the attention of the state, and it has been
accepted as a principle that the state must
care for defectives; that such people should
not be looked after by any social or political
division of the state. The doctor testified
that he had observed 5,000 feeble-minded
patients; that Osborn could not earn his
living outside of the institution if he were
turned out into the world; that he had an
"eight year'' mental capacity; that all patients
in the institution are segregated; and upon
the question of Osborn being able to pro-
create normal children he said: "We are
taught that the dominant traits appear in
one-quarter, when the parentage is mixed
as regards traits; that it is only in cases of
feeble-mindedness of both parents that yot
would look generally for an increase oi
feeble-mindedness among offspring."
In other words, that when one parent is
feeble-minded and the other of norma;
mental capacity that the tendency is reces-
sive, that is, towards the normal.
The doctor testified that vasectomy would
not change any of the criminal tendencies of
the feeble-minded at all; it would only elimi-
nate the one element of procreation; that in
his opinion one of the conditions which
would result from a general enforcement oi
the law, as is here determined, would be to
tend to create a class of people by them-
selves who would feel that they were so
different from normal humanity that they
would go back to promiscuous sexual rela-
tions and that there would be known places
where these people were harbored and there
they would tend to collect. That among a
class of such persons upon whom the oper-
ation of sterilization has been performed you
would find increased sexual intercourse, and
that such increased illicit intercourse is a
promoter of disease and general demoraliza-
tion.
Dr. Bernstein, knowing Frank Osborn as
an inmate of the institution of which he was
superintendent, testified that he was not in
favor of the operation upon Osborn which
has been recommended. He further said
that he did not know of one case in the
1,300 in the institution that it would be de-
sirable to operate upon, giving as a reason
that it would not help the boy, and it would
not help society. Osborn will have to be
supervised and cared for just as well and
just as much after the operation as before;
after the operation of vasectomy he will want
to go where the girls are just as much as he
does now; that society needs protection from
DuTAiivED Review of Litigation — New York
225
the raping of little girls and the frightening
of them just as much as it wants protection
from a future generation of dependents and
delinquents. That vasectomy upon Osborn
is not going to give us the thing society
wants to have, protection from his possible
ravages. In the doctor's opinion this legis-
lation is in advance of our enlightenment —
we don't know today what we are dealing
with; that a careful and scientific study of
ductless glands and their secretions shows
that when such secretions forming in the
body are interfered, with, physiological
teaching indicates that conditions are created
which affect the brain and the nervous sys-
tem; and that such interference with the
secretions does not cause or bring about a
cure or a remedy such as is sought.
Frank Osborn testified. He did a small
sum in addition; knows the days of the
week; knows his age; but said he did not
know what this inquiry or proceeding meant.
Dr. Davenport, a biologist, testified that he
agreed with the statements made by Dr.
Sharp of Indianapolis in an article entitled,
"Vasectomy as a means of preventing pro-
creation in defectives," in the statement
there contained that "defective persons are
not necessarily to become a public charge,
for included within this class are to be found
the most gifted as well as the most vicious,
weakest and ordinarily the most unhappy of
mankind," and mentioning a few of such
instances in the names of Chatterton, Gold-
smith, Coleridge and Charles Lamb.
This statute grows out of studies and
efforts of those who are interested in the
subject of eugenics, which has to do with
the improvement of the population by taking
advantage of laws of heredity; with improv-
ing through better breeding. It deals with
the inheritance of traits; with changes in
population through differential fecundity;
the greater or less fecundity of the different
classes of population; with changes of popu-
lation from emigration; or better or worse
strains, with hereditary basis of the traits of
population. That there is to be found much
of good in the most degenerate families
known in our land, mentioning the Jukes
and the Nams.
The doctor testified that he has not advo-
cated the operation of vasectomy, and that
in his opinion segregation of the sexes would
be better.
Mr. Van Wagenen, who has studied and
written upon the problems of eugenics, testi-
fied that it would be well if voluntary accept-
ance of such an operation could be had; that
when such operations have been done against
the will of the patient the psychic effects
have been bad; that he would never recom-
mend such an operation except upon those
who consented.
Dr. Coakley, a specialist in vivisection,
testified as to the danger of infection because
of the retained secretions in the body; that
in the operation the vas deferens is severed,
but that it can be reunited even after a
considerable length of time, and therefore,
nothing is accomplished.
Dr. Fernald, superintendent of the school
for feeble-minded in Massachusetts, testified
that he had never seen an authorized medical
statement based upon actual facts which
would justify claims made for the results in
Indiana where such a law is in operation;
that the operation of vasectomy does not in
the slightest interfere with the physical act
of sex intercourse; that illicit intercourse
would result, and the effect thereof would
be the exchanging of the burden of feeble-
mindedness for the burden of sex immorality
or sex diseases and of insanity resulting in
that condition which would be quite as seri-
ous and would affect people who are pro-
ducers and burden bearers. It would
prejudice many right-thinking persons who
are interested in those who are afflicted
against institutions, when it is known that
under the law such an operation would be
possible against the wishes of the person
upon whom the operation is to be made.
The testimony shows that the operation
of vasectomy upon the male is simple in its
character; that it can be done without anaes-
thesia, quite painless. That upon the female
is is serious in its character, requiring an
abdominal section and the risks incident
thereto.
A well authenticated case upon the records
shows that in the case of a woman having
been sterilized because of feeble-mindedness
she was freed from any danger incident to
childbirth, was therefore freely inclined to
improper sexual relations, and her lack of
moral character becoming generally known
she was the victim of constant sexual rela-
.tions with the boys and men of the little
village where she lived; that she became
diseased resulting in an epidemic of venereal
disease in the locality.
.The court has set forth sufficient of the
testimony and of that portion of it which
is practically uncontradicted to indicate that
the determination of the Board of Examiners
226
Detailed Review oe Litigation — New York
to cause the operation of vasectomy upon
Frank Osborn is not justified either upon
the facts as they today exist or in the hope
of benefits to come.
The members of the Board of Examiners
apparently know very little about the sub-
ject. They have given it no particular study.
They are not, in the opinion of the court,
justified in the determination which they
have reached, and, therefore, upon review of
the determination which the board has made,
this court reverses the same.
The action above entitled was brought by
Frank Osborn against the defendants as
members of the Board of Examiners for an
injunction restraining the board from caus-
ing to be performed an operation upon him
to prevent procreation.
It is claimed that the law in question vio-
lates the Constitution of the United States
in many respects; that it is a Bill of Attain-
der; that it is depriving citizens of a trial
by jury; and also of the privileges or immu-
nities to which citizens of other states are
entitled; that it is compelling a citizen to be
a witness against himself, and depriving him
of life, liberty and property without due
process of law; that it permits infliction of
a cruel and unusual punishment; that it
abridges the privileges and immunities of
citizens in depriving persons of life, liberty
and property without due process of law,
and denying to persons within its jurisdiction
the equal protection of the law.
It is conceded that the proper form of
raising the question of unconstitutionality
herein involved, is by an action asking a
permanent injunction.
A similar law has been declared unconsti-
tutional by the Supreme Court of New Jer-
sey in the case of Smith against the Board
of Examiners, 88 Atlantic Reporter, 963, in
an opinion written by Judge Garrison.
The New Jersey statute gave to the Board
of Examiners discretion to determine the
form of operation most effective, as does the
New York Law.
It was thus given to the board to do almost
anything which in their opinion would effec-
tively destroy the power of procreation in
Frank Osborn, or of any male or female
feeble-minded inmate of a State hospital.
The statute seems to vest in the board the
discretion to do what Judge Garrison sajd
of the New Jersey Law:
"The statute is broad enough to authorize
an operation for the removal of any one (in
the female) of these three organs, that is the
ovary, the fallopian tube and the uterus,
which arc essential to procreation."
, The subject of the operation in the New
Jersey case was an inmate of the State
Village for Epileptics, and the New Jersey
court said: "While the case in hand raises
the very important and novel question
whether it is one of the attributes of govern-
ment to essay the theoretical improvement
of society by destroying the function of pro-
creation in certain of its members who are
malefactors against its laws, it is evident that
the decision of that question carries with it
certain logical consequences, having far-
reaching results. For the feeble-minded and
epileptics are not the only persons in the
community whose elimination as undesirable
citizens would or might in the judgment of
the legislature, be a distinct benefit to so-
ciety. If the enforced sterility of this class
be a legitimate exercise of governmental
power, a wide field of legislative activity and
duty is thrown open to which it would be
difficult to assign a legal limit."
Frank Osborn is not a malefactor. He is
mentally deficient. He is defective without
personal responsibility for such defect. It
must be assumed that he is poor in the sense
that there are no parents or friends to give
him a home and provide for him, and so he
becomes a ward of the state to be cared for
and treated and strengthened and developed,
if possible. He is no different from many
others running no doubt into the thousands
in our state who are not within the confines
of a State institution, and who together taken
with those who are in institutions and simi-
larly situated, mentally and physically, make
up a large class of mentally deficient people.
Can it be said that the law can direct the
physical mutilation of the bodies of those
who are in the State's care, and not be con-
cerned with the same class of persons who
are in the world at large?
The laws of our State which have been
sustained by our courts as a proper exercise
of the police power are not found to be a
justification of this law.
The statute under consideration concerns
certain classes of criminals as well as de-
fectives. In the consideration of the ques-
tion here we have properly confined our
thoughts to the facts which have developed
in the testimony, and those facts only relate
to the feeble-minded.
The operation upon the feeble-minded is in
no sense in the nature of a penalty, and
Detaii,i;d Review of Litigation — New York
227
therefore, whether it is an unusual and cruel
punishment is not involved.
The entire purpose of the enactment seems
to be to save expense to future generations
in the operation of eleemosynary institutions
organized by the people of the State to care
for those who are afflicted; the theory being
that if the Board of Examiners should con-
clude that every feeble-minded inmate of a
public institution should be operated upon
either by the operation known as vasectomy
or the more radical operation of castration
that then the State woud be justified in turn-
ing all the people of this class at large to
find their own way, trusting that they, in
accordance with the theory of the law, could
no longer procreate; the State being thus
relieved of their care during their lives and
freed from the danger of the burden in the
future of their abnormal oflfspring.
Such does not seem to this court to be the
proper exercise of the police power. It seems
to be a tendency almost inhuman in its
nature. The subject of this inquiry is, ac-
cording to the testimony of physicians, physi-
cally strong. The same witnesses testified
that if turned out into the world after or
without the operation he could not care for
himself or make a living; that at present,
situated as he is, he works and helps the
State in meeting the burden upon it in his
care.
The last section of the statute under con-
sideration provides that "Except as author-
ized by this act every person who shall per-
form, encourage, assist in or otherwise permit
the performance of the operation for the
purpose of destroying the power to pro-
create the human species, or any person who
shall knowingly permit such operation to be
performed upon such person, unless the same
shall be a medical necessity, shall be guilty
of a misdemeanor."
It seems clear that Frank Osborn is not
given the equal protection of the laws, having
in mind many others situated as he is who
are not within the walls of a public institu-
tion, to which equal protection he is entitled
with them. There is afforded to the young
man similarly situated as to his physical and
mental makeup, who is cared for by his par-
ents in his own home, whose sexual tenden-
cies and capacity may be the same as
Osborn's, the protection of the law which
makes it a misdemeanor for any person to
assist or take part in the operation of vasec-
tomy upon such a subject, while Frank
Osborn, because he is an inmate of a State
hospital, is not only not protected, but he is
subject to such operation without his consent
when determination is reached by the board
created under this statute.
It seems, therefore, that the provisions of
the Federal Constitution to which this law is
offensive is that part of the Fourteenth
Amendment which declares "that no state
* * * shall deny to any person within its
jurisdiction the equal protection of the
laws."
The law certainly denies to some persons
of a class and similarly situated the pro-
tection which is afforded to others of the
same class.
The State has power, many times sustained
by the courts, to protect the health, morals
and welfare of the people, but such protec-
tion cannot be afforded unless it applies to
all alike.
The courts have sustained the laws which
prohibit the marriage contract between epi-
leptics within certain ages, enacted for the
same purpose and to accomplish the same
end as the law we are considering, but such
laws thus sustained have related to all epilep-
tics, they do not alone relate to the unfortu-
nates within hospitals.
Our attention is called to an interesting
and most readable opinion by the Attorney-
General of California.
His conclusion is "as regards the castration
of confirmed criminals and rapists, and those
guilty of sexual crimes, I am of the opinion
that these are grave constitutional questions"
but "as restricted to the sterilization of the
inmates of prisons and hospitals by the
method of vasectomy, I am of the opinion
that there are no legal inhibitions upon this
enlightened piece of legislation which is an
awakening note to a new era and a great
advance toward that day when man's inhu-
manity to man will have acquired a meaning
beyond mere frothy sentiment."
Why sterilization by vasectomy of patients
in a hospital, who are grouped as a class with
rapists in a State prison, strikes an awaken-
ing note in a new era and will lead to the
day to which the Attorney-General so poeti-
cally refers, is beyond the comprehension of
this court and is not enlightening.
Our conclusion is that the statute is un-
constitutional and therefore invalid.
Judgment may be entered accordingly.
g. Judgment of Supreme Court.
At a Special Term of the Supreme Court
of the State of New York, held at the City
228
DETAILED Review of Litigation — New York
of Albany, N. Y., on the 17th day of Sep-
tember, 1915.
Present: HON. WM. P. RUDD, Justice.
SUPREME COURT,
COUNTY OF ALBANY.
FRANK OSBORN,
Plaintiff,
against
LEMON THOMSON, CHARLES
H. ANDREWS and WILLIAM
J. WANSBORO, composing the
Board of Examiners of Feeble-
Minded, Criminals and other De-
fectives,
Defendants.
The defendant above named having volun-
tarily generally appeared in this action by
Hon. Egburt E. Woodbury, Attorney-Gen-
eral, as their attorney and having served an
answer herein; and the issues raised thereby
having been duly brought on for trial at the
above Special Term and a trial thereof hav-
ing been had before the undersigned, without
a jury, commencing on the 17th day of Sep-
tember, 1915; and the plaintiff having
appeared upon said trial by Ellis J. Staley,
his attorney, and by J. Sheldon Frost, of
counsel, and the defendants having appeared
by Hon. Wilber W. Chambers, Deputy
Attorney-General, of counsel; and a decision
containing a statement of the facts found
and the conclusions of law thereon and di-
recting judgment as hereinafter set forth
having been duly made and this day filed
herein; and the plaintiff's costs and disburse-
ments having been duly taxed at the sum of
one hundred and eight dollars. Now, upon
filing the summons, complaint and answer,
and upon the decision filed herein as afore-
said, it is, on motion of Ellis J. Staley, attor-
ney for plaintiff,
Adjudged and decreed as follows:
First: That the defendants. Lemon
Thomson, Charles H. Andrews and William
J. Wansboro, composing the Board of Ex-
aminers of Feeble-minded Criminals and
other Defectives, and each of them and their
agents, representatives and successors in
office, be perpetually enjoined and restrained
from performing or permitting to be per-
formed upon said Frank Osborn the opera-
tion of vasectomy.
Second: That the plaintiff, Frank Osborn,
recover of the defendants. Lemon Thomson,
Charles H. Andrews and William J. Wans-
boro, composing the Board of Examiners of
Feeble-minded Criminals and other Defec-
tives, the sum of one hundred and eight
dollars, his costs and disbursements of this
action.
Judgment entered this 8th day of March,
1918.
WILLIAM P. RUDD,
Justice Supreme Court.
L. C. WARNER,
Clerk.
h. Notice of Appeal.
SUPREME COURT,
ALBANY COUNTY.
FRANK OSBORN,
Plaintiff-Respondent,
against
LEMON THOMSON, CHARLES
H. ANDREWS and WILLIAM
J. WANSBORO, composing the
Board of Examiners of Feeble-
Minded Criminals and other De-
fectives,
Defendants-Appellants.
PLEASE TAKE NOTICE that the above
named defendants hereby appeal to the
Appellate Division of the Supreme Court for
the Third Department, from the judgment
of the Supreme Court herein entered in this
action in the office of the clerk of Albany
County on the 8th day of March, 1918,
wherein it was adjudged that the defendants
be perpetually enjoined and restrained from
performing an operation on plaintiff, and the
said defendants appeal from each and every
part of said judgment as well as from the
whole thereof.
Dated, March 26, 1918.
MERTON E. LEWIS,
Attorney-General and
Attorney for the Defendant.
Office and Postoffice Address: Capitol,
Albany, N. Y.
To:
HON. ELLIS J. STALEY,
Attorney for Plaintiff,
95 State Street, Albany, N. Y.
HON. LUTHER C. WARNER,
Clerk of the County of Albany.
i. Stipulation for Settlement of Case.
It is hereby stipulated that the foregoing
case contains all the evidence given in the
trial of this action, and may be settled as
hereinbefore set forth and signed and ordered
Detailed Review oe Litigation — New York
229
filed by the justice before whom this case
was tried.
Dated, May 1, 1918.
MERTON E. LEWIS,
Attorney- General ;
Attorney for Appellant.
ELLIS J. STALEY,
Attorney for Respondent.
j. Order Settling Case.
The foregoing case contains all the evi-
dence given and proceedings had upon the
trial of this action, and is hereby settled and
signed by the undersigned, before whom this
action was tried without a jury, and ordered
filed in the office of the Clerk of Albany
County.
Dated, May 1, 1918.
WILLIAM P. RUDD,
Justice,
k. Stipulation Waiving Certification.
It is hereby stipulated by the attorneys for
the respective parties herein that the fore-
going summons and complaint, answer,
order appointing counsel, minutes of trial,
findings of fact and conclusions of law, ex-
ceptions to conclusions of law, and opinion
of Mr. Justice Rudd, judgment and notice
of appeal therefrom are true and correct
copies of the originals thereof, and of the
whole of such originals, and certification of
the same is hereby waived.
Dated, May 1, 1918.
MERTON E. LEWIS,
Attorney- General ;
Attorney for Appellant.
ELLIS J. STALEY,
Attorney for Respondent.
3. APPELLATE DIVISION OF THE
SUPREME COURT OF THE STATE
OF NEW YORK FOR THE THIRD
DEPARTMENT. (185 App. Div. 903.)
PRINCIPAL DOCUMENTS.
a. Brief for Plaintiff-Respondent, by his
Attorney, Ellis J. Staley. Argued by
J. S. Frost, Albany, N. Y.
FRANK OSBORN,
Plaintiff-Respondent,
against
LEMON THOMSON, CHARLES
H. ANDREWS and WILLIAM
J. WANSBORO, composing the
Board of Examiners of Feeble-
Minded, Criminals, and Other De-
fectives,
Defendants-Appellants.
The defendants, composing the Board of
Examiners of Feeble-minded, Criminals and
other Defectives, have appealed from the
judgment of- the Special Term whereby they
were perpetually restrained from performing
the operation of vasectomy upon Frank
Osborn, the plaintiff in this action. (Case
on Appeal, fol. 1074.)
The trial was had before Mr. Justice Rudd
at the Albany Special Term. The opinion
of the Special Term is printed at folios 995-
1066.
The act under which the operation is pro-
posed to be performed was passed in 1912
and is known as Chapter 445 of the laws of
that year. No operations have been per-
formed thereunder (fol. 76) and the applica-
tion for the appointment of counsel and for
a hearing in respect to the proposed enforce-
ment of such law was not made until June,
191S. (Fol. 86.)
The selection of Frank Osborn as the sub-
ject for such operation was the first made by
the Board (fol. 177) and this action was
thereafter brought in order that all ques-
tions might be presented in a manner recog-
nized by established procedure. Evidence
was received without technical objection in
order that the fullest presentation of facts
and of the opinions of those who had made a
study of the transmission of mental qualities
might be had.
A very clear and comprehensive statement
of the facts is to be found in the opinion of
the learned Special Term.
The benefit of the proposed operation,
assuming the same might be so effective as
to prevent subsequent restoration of procre-
ative powers, in this particular instance is
clearly of a financial nature only. It is un-
disputed that Osborn would be unable to
maintain himself were he left to his own
resources, possessing as he does, a mental
development, according to established tests,
of an eight-year-old child. (Fols. 410, 420,
96S-967, 978.)
Dr. Thomson, the chairman of the Board,
testified at folio 234:
"Q. The sole benefit then it is claimed by
"your board for this operation is that it
"prevents procreation of persons liable to
"feeble-mindedness?" A. "Yes, sir.''
Bleeker Van Wagenen, who as appears
from the testimony has given much study
to the subject of sterilization, testified at
folio 781:
"I have seen cases where the operation
has been performed compulsorily under the
230
Dh;taii,b;d Review of Litigation — New York
state law against the will of the individual,
and against his violent protest, where the
psychic effect has been bad. And along with
that there has seemed to be some measure of
bad effect physically as well as mentally.''
Dr. Fernald testified at folio 929, in speak-
ing of persons upon whom the operation of
castration had been performed, as follows:
"Q. Have you observed as to whether or
not those persons were treated generally as
a class by themselves, in a sense? A. Well,
my own patients have been jeered at and
have been ridiculed.
"Q. What have you observed with re-
spect to the confidence of the patient himself
after the operation, with respect to his deal-
ings with the public? A. Well, the male
patients who have been castrated had very
much less self-confidence — why, less self-
respect and confidence, I think, expresses it
fully."
Dr. Bernstein testified, upon examination
by the court beginning at folio 20:
"By the Court:
"Q. Referring to the situation that the
counsel just mentioned, are you in favor of
taking this step with reference to Frank
Osborn? A. No. Q. Why? A. This
step of vasectomy you mean? Q. Yes.
Why? A. Because it won't help the boy; it
won't help society. The boy will have to be
supervised and cared for just as well and as
much as if he had the operation as if he does
not have the operation. I have the personal
history of the boy here showing his tendency
to go where the girls are, showing that he
has had to be disciplined several times for it.
After the operation of vasectomy he will
want to go where the girls are just as much
as he does now. Now society wants pro-
tection from the raping of little girls and
frightening them just as they want protec-
tion from a future generation of dependents
and delinquents."
Osborn is now a State charge, segregated
from persons of the opposite sex. He would
be a public charge were the operation per-
formed. It is not apparent wherein the State
would be financially benefited by the per-
formance of the proposed operation, but,
assuming that it might be thus benefited, the
question resolves itself into this: Is mutila-
tion of the person of an innocent but physi-
cally unfortunate human being permissible
to that, or any, end?
Dr. Charles Bernstein, who for twelve
years has been the superintendent of the
Rome State Custodial Asylum where Osborn
is held as a patient, testified to having
observed approximately five thousand cases
of feeble-mindedness (fol. 408) and under
whose direction seven operations of vasec-
tomy had been performed (fol. 444), de-
scribed the method of operation as consist-
ing of opening the skin directly on the groin
and a few tissues below the skin bringing
to view the spermatic cord, consisting of the
artery and veins to the testicle, the vas
deferens which carry the spermatic fluid or
nerve supply to the testicle and some other
tissue; then the vas deferens, which is tortu-
ous or worm-like and two or three times as
long as the artery, veins and nerves which
are associated with it, is selected from this
mass of tissue and about an inch thereof cut
out, tying the ends and sewing the wound
together. Sometimes the tissue of the
scrotum is pulled up to the groin and the cut
made through the skin so as not to have a
scar appear in the groin, but in either event
the tissues under the skin are opened above
the groin. (Fols. 445-449.)
That but little force is to be given to the
assertion of the chairman of the Board of
Examiners that the operation is of a most
simple and safe character will be manifest
from an examination of his testimony upon
this subject appearing at folios 204-230.
Dr. Coakley testified that while the opera-
tion could be performed with one incision, it
would be better to make two incisions and
that any iircision in the human body involves
elements of danger. (Fol. 873.) He said
"there is always danger of infection regard-
less of the most positive asepsis and the
danger of shock can not be explained at all."
There is no evidence to show that Osborn
possesses the reproductive plasm (sperma-
tozoa). It is here proposed to perform the
operation upon the mere presumption of the
possession of such powers. In a normal
person and in matters of property or matri-
monial rights, indulgence in such presump-
tion might be, and doubtless is, permitted;
but it should not be assumed in the case of a
defective where physical mutilation is in-
volx'ed.
Dr. Bernstein testified at folio 459:
"What we need to know is in what per-
centage of our feeble-minded cases are
spermatozoa present at the present time and
in how many of these will it reappear after
one or two years following the vasectomy.
"Q. In other words, in your opinion,
Doctor, there may exist among the feeble-
minded patients under the charge of the
Detailed Review of IvITigation — New York
231
State a considerable number who might be
correctly described as being sterile at the
present time? A. Yes, sir."
The operation of vasectomy does not
necessarily prevent procreation. Dr. Bern-
stein found the presence of spermatozoa
nearly a year after the operation had been
performed (fol. 455), and he stated at folio
457, referring to cases where the operation
had been performed under his direction;
"The real unfortunate situation here is that
these cases should have been studied as re-
gards the presence or absence of sperma-
tozoa in the ejaculated fluid before as well
as after the operation.''
Dr. Coakley testified that the vas deferens
could be reunited after the operation. (Fol.
843.)
Dr. H. C. Sharp, of Indiana, under whose
direction most of the operations were per-
formed in that state, on October 6, 1915,
wrote to the counsel for the respondent a
letter which is here inserted by permission
of the counsel for the appellants and of
which the following is a copy :
"The operation to which you refer of
reuniting the severed ends of the vas is pos-
sible, although a delicate but very simple
operation. However, I have never done this
operation but in one case, and I did this for
the purpose of demonstrating that it was
possible."
Mr. Boston states that sterilization is a
punishment unless a benefit results. (See
Appendix.)
Mr. Justice Rudd, in his very able opinion,
says, at folio 1148: "Frank Osborn is not
a malefactor. He is mentally deficient. He
is defective without personal responsibility
for such defect."
The proposition of Justice Rudd is that of
an undisputed fact; the proposition of Mr.
Boston is manifestly correct. This court
may and should assume the accuracy of
both. If both are true, no authority can be
found for the performance of the proposed
operation unless it appears from the record
that Osborn is to be benefited thereby. We
respectfully submit that the appellants have
failed in such respect.
To deprive an individual of all hope of
progeny, where he has been guilty of no
offense, is at least a close approach to cruel
and unusual punishment. The case of State
V. Feilen (70 Wash., 65, 126 Pac. 75), from
which the appellants quote at considerable
length, was one where the defendant had
been convicted of the crime of rape com-
mitted upon a child under ten years of age,
sentenced to imprisonment for life and to
have the operation of vasectomy "carefully
and scientifically performed." The court
said the nature of the crime would permit
the death penalty had the legislature so de-
termined and concluded as follows: "We
can not hold that vasectomy is such a cruel
punishment as can not be inflicted upon
appellant for the horrible and brutal crime
of which he has been convicted."
The assertion would seem to be justified
that vasectomy might not be cruel punish-
ment when applied to one convicted of a
brutal sexual crime, but as applied to any
other crime, much less to an innocent, it
becomes cruel and inhuman.
Cruel and unusual punishment under the
Philippine Bill of Rights was held in Weems
vs. United States, 217 U. S. 349; 30 Sup.
Ct. Rep. 544, to invalidate a sentence of carry-
ing during the term of imprisonment a chain
at the ankle hanging from the wrist and
perpetually disqualifying from the exercise
of political rights. In connection with the
review by the Court of a considerable
number of cases it is said: "In the applica-
tion of a constitution, therefore, our con-
templation cannot be only of what has been,
but of what may be. Under any other rule
a constitution would indeed be as easy of
application as it would be deficient in efficacy
and power."
The New York State statute here in ques-
tion assumes to authorize the prevention of
procreation by such operation "as shall be
decided by said board to be most effective."
Under the rule stated by the Supreme Court .
of the United States in the recent case above
cited, it is permissible for this court to con-
sider the possibility of the amputation of
the sexual qrgan or even, as was said by
Governor Pennypacker of Pennsylvania in
his veto message of March 30th, 1905, of a
similar statute: "It is plain that the safest
and most effective method of preventing pro-
creation would be to cut the heads off the
inmates and such authority is given by the
bill to this staff of scientific experts."
In Fisher Co. vs. Woods (187 N. Y., 90),
Haight, J., in writing the unanimous opinion
of the court, said, at page 95:
"The legislative determination as to what
is a proper exercise of the police power, is
subject to the supervision of the court and
in determining the validity of an act it is its
duty to consider not only what has been done
under the law in a particular instance, but
232
Detaii^ed ReviBw OF Litigation — Ngw York
what may be done under and by virtue of its
authority. Liberty, in its broad sense, means
the right not only of freedom from servitude,
imprisonment or restraint, but the right of
one to use his faculties in all lawful ways;
to live and work where he will, to earn his
livelihood in any lawful calling and to pursue
any lawful trade or avocation." (Citing
numerous cases.)
The testimony of Dr. Walter E. Fernald,
for twenty-eight years Medical Superintend-
ent of the Massachusetts School for Feeble-
Minded, and who has had under his charge
during the past ten years an average of over
1,000 patients, is entitled to very great con-
sideration because of his high standing in his
profession and his knowledge gained from
specific cases. He states that in the New
York Hospitals for the Insane from twelve
to twenty-five per cent are public charges
because of mental diseases caused by syphilis.
(Fol. 948, 930.)
He further states that some thirty to
thirty-five per cent of his patients are not
of the hereditary class. (Fol. 9S3.)
In his opinion, in which Dr. Bernstein con-
curs, the unsexing of the individual leads to
more promiscuous illicit intercourse.
Beginning at folio 934, he says:
"I feel that sterilization would enormously
increase the likelihood of illicit sex inter-
course: I believe that with the female the
fear of impregnation, in the case of very
many — I say this without disrespect — but in
the case of very many women is a deterrent
to illicit sex intercourse, and with that re-
straint removed I believe there would be an
enormous increase in the intercourse of
women so operated upon. In fact, that has
been before the committees of our legislature
for the last six or seven years, and I have
given that as my principal reaso_n, or one of
the principal reasons, for my opposition to
the whole principle of sterilization. On the
other hand, the sterilization of male patients
which renders them incapable of impregnat-
ing women would have the same eflfect in
that it would cause girls and women to feci
that intercourse with that man was abso-
lutely safe and could be indulged in without
any of the fear of detection, which is within
a certain class of wcunen the only thing
which keeps them from promiscuous sex re-
lations. * * * I had one female patient who
was a girl of 17, who was taken home by the
overseer of the poor of a certain town and
subjected to the operation of ovariotomy.
She had been a public charge up to the time
because of the fear of the town officials that
she would bring other children into the
world. After the operation she was turned
over to her mother and told that as there
was no longer any danger of her having chil-
dren the town would no longer assume re-
sponsibility. That girl immediately— her
mother was a working woman and was not
able to safeguard her and not able to watch
her — and I was visited in about three months
by the clergyman and physician of that
village, who told me that that morning their
children, a boy of five and a girl of seven,
had peeped through a picket fence, with
other children, and watched a line of boys
who in turn had sex intercourse with this
sterilized feeble-minded girl. The physician
told me that he thought that very many of
the boys and young men in that town had
intercourse with her. That she had acquired
gonorrhea and that she transmitted gonor-
rhea to a very large number of the boys,
who in turn had infected other girls and
women, and that there was an epidemic of
gonorrhea in that little village from the sex
relations with this one girl. That was a
rather remarkable opportunity to judge of
some of the possibilities of the presence in
the community of women who were known
to be incapable of becoming pregnant. Of
course that is partly social. The fact that
she was sterile made the authorities feel that
it was not a -matter for them. I have no
doubt that that fact influenced her mother
somewhat in being willing to allow her to be
exposed as she was. I have no doubt it was
a factor in making those boys and men feel
that intercourse with her was fairly safe.
I have always felt that the danger of the
transmission of venereal diseases would be
enormously increased if we should sterilize
large numbers of boys and girls, men and
women, and allow them to be at large, for
those reasons."
Supporting the observation of Dr. Fernald,
Dr. Bernstein testified at folios 478-479:
"Q. Has it been your observation,
Doctor, that the probability of offspring is
deterrent to illicit intercourse? A. Yes, sir.
"Q. So that among a class of persons
such as you describe, namely, persons
among whom the operation of sterilization
has been performed, you would expect to
find increased intercourse, would you not?
A. Oh, decidedly.
"Q. And increased illicit intercourse is a
promoter of disease and of idleness, is it not?
A. It is very commonly recognized as that."
DETAILED Review of Litigation — New York
233
On cross-examination, Dr. Thomson, of
the Board of Examiners, testified, beginning
at folio 230:
"Now, Doctor, the performance of the
operation of vasectomy is not an interference
with the sensation incident to cohabitation?
A. It is not.
"Q. So that a feeble-minded individual or
any other individual upon whom the opera-
tion of vasectomy might be performed would
be equally desirous to have intercourse?
A. He would be deprived absolutely of
nothing than power to procreate.
"Q. And one of the purposes of the per-
formance of this operation upon inmates of
State charitable institutions is that they may
be safely allowed their liberty and not kept
in enforced segregation from females?
A. Yes, sir.
"Q. There is a menace to society from
illicit intercourse and from intercourse
between individuals under unsanitary condi-
tions, is there not? A. Yes, sir.
"Q. And that condition, and that of vene-
real diseases is a serious menace to the future
of the race, is it not? A. Why, yes, sir;
those who get it.
"Q. Then so far as any benefit might
come in the direction of the venereal disease
wouldn't be affected one way or the other
by this operation? A. No effect whatever.
"Q. The sole benefit then it is claimed by
your Board for this operation is that it pre-
vents procreation of persons liable to feeble-
mindedness? A. Yes, sir."
Manifestly an increase of illicit intercourse
means an increase in venereal and other dis-
eases, including syphilis, with the resulting
increase in the number of feeble-minded.
On this phase, Dr. Fernald testified, at folio
930:
"The evidence which has been obtained by
the use of the modern blood reactions show
that different observers have found from ten
to thirty per cent of the inmates of our insti-
tutions for the feeble-mindeded are feeble-
minded because of the congenital syphilis
which they inherited from their parents."
In matter of Jacobs (98 N. Y., 98) a statute
entitled, "An Act to improve the Public
Health by prohibiting the manufacture of
cigars and the preparation of tobacco in any
form in tenement houses in certain cases
and regulating the use of tenement houses in
certain cases," was held unconstitutional
upon the ground that the court was not able
to see in the law a sufficient adaptation to
the end claimed.
In other words, the proposition resolves
itself into this: Is not the proposed remedy
fraught with more danger than the disease
itself?
It seems quite certain that the right to
trial by jury is denied by this statute. The
procedure is not clearly indicated therein.
Apparently a majority of the Board may
appoint one of its members to perform the
operation on a selected criminal or defective
inmate of state institutions after an examina-
tion into the mental condition, record and
family history. The Board then applies to a
judge of the Supreme Court or a county
judge to appoint counsel; such counsel "to
act at a hearing before the judge and in any
subsequent proceedings." Then an order
may be made by the Board for the operation,
which orders are subject to review "by the
Supreme Court or any justice thereof." In
what manner this review is to be had is not
set forth in the statute, but in the absence of
any provision for submitting the questions
to be reviewed to a jury it would seem that
the method must be either by appeal or by
certiorari based upon the "record taken upon
the examination." The absence of the right
to trial by jury would seem to make this
statute objectionable as being a Bill of
Attainder.
The important decisions dealing with the
general question of constitutionality of laws
of this character are:
Smith vs. Board of Examiners, 85 N. J.
Law, 146; 88 Atlantic Rep., 963.
Davis vs. Berry, 316 Fed. Rep., 413.
The only other decision, so far as we have
been able to ascertain, is that of State vs.
Feilen (70 Wash., 65; 126 Pac. Rep., 75.) An
examination of this last case shows that the
only constitutional question considered is
that of cruel and unusual punishment, and
for reasons heretofore pointed out in this
brief, it seems wholly inapplicable to
Osborn's situation.
The respondent refrains from a discussion
of the first two cases above, not because of
a belief in their lack of importance, but
because of a belief that by reason of their
very great importance this court will desire
to examine the reported decisions in their
entirety, rather than to accept such portions
thereof as counsel might select for insertion
within the limitations of a brief of reasonable
length.
Among the cases upon which the appel-
lants rely are Matter of Viemeister (179
N. Y., 235), and Jacobson vs. Commonwealth
234
Detahed Review oF Litigation — New York
of Massachusetts (197 U. S., 11). These cases
deal with vaccinations as a health proposition
and to avoid the spread of a contagious dis-
ease involving no loss or destruction of
natural power, physical ability or of a func-
tion of life.
We submit the following taken from the
brief filed by the complainant in Smith vs.
Board of Examiners (supra) :
"Medicine is admittedly an uncertain
science, it is to a large degree experimental
and theoretical, for it deals with the mystery
of life, death and the infinite phenomena of
physical production and reproduction and
nothing short of infinite knowledge should
be taken as absolute authority when we
undertake to finally determine the source of
human imperfections, mental and physical.
"There is and can be no guarantee that
this or that disease is incurable and never
will be curable or is necessarily transmit-
tible from one generation to another.
"There can be no definite line drawn to
make a division line between the healthy
and the unhealthy, the normal and the ab-
normal, for no human is perfect either in
mind or body. We are sick or well, sane
or insane by comparison only.
"This act applies only to those confined
in institutions of the State and does not
include any of its subjects who may be
similarly afflicted who are at large. It is,
therefore, directed at a particular class of
unfortunates who, by reason of their con-
finement alone, are denied the usual pur-
suits of happiness, and the ordinary oppor-
tunity of procreation and sexual enjoyment.
They, however, have forfeited no constitu-
tional right.
"There is no immediate danger to society
for owing to their present situation the possi-
bility of the social evil in mind is remote and
contingent. It seems a dangerous innovation
to give any board or constituted authority,
created by legislative enactment only, the
power to physically harm one of the State's
subjects under less safeguard and formality
than is required to inflict a penalty upon
criminals who have violated the rules of
society and forfeited its protection.
"The victims of the operation of this law
are unfortunates merely — heirs, perhaps, of
the transgressions of others, they have not
wronged society, they bear the penalties of
an efifctc civilization, are mentally and physi-
cally helpless, the wards of the State."
An article written by Mr. Charles A. Bos-
tofi of the Ntvi York Bar and published in
the Journal of Criminal Law ^d Criminol-
ogy, in the issue of September, 1913, contains
such an able, interesting and exhausting
argument upon the question of sterilization
that we take the liberty of attaching the
same as an appendix to this brief.
The respondent contends that the judg-
ment of the Special Term should be affirmed,
with costs.
Respectfully submitted,
ELLIS J. STALEY,
Attorney for Plaintifif-Respondent.
J. S. FROST,
Of Counsel.
b. Decision of Appellate Division of Su-
preme Court.
July 1, 1918.
"Judgment unanimously affirmed as the
opinion of Rudd, -J., at special term."
4. COURT OF APPEALS. (Adv.
Sheets No. 950, March 15, 1919.
PRINCIPAL DOCUMENTS,
a. Brief on Behalf of Defendants-Appel-
lants, by Merton E. Lewis, Attorney-
General. Argued by Wilber W. Cham-
bers, Deputy Attorney-General.
IN THE
COURT OF APPEALS
OF THE
STATE OF NEW YORK.
FRANK OSBORN,
Plaintiff- Respondent,
against
LEMON THOMSON, and others,
composing the Board of Examin-
ers of Feeble-Minded Criminals
and other Defectives,
D ef endants-Appellants.
This is an appeal by the Board of Examin-
ers of Feeble-Minded, Criminals arid other
Defectives from the judgment of the Appel-
late Division of the Supreme Court, entered
herein in the office of the clerk of said
Appellate Division on July 5, 1918, affirming
a judgment entered in this action on March
8, 1918, in the office of the clerk of Albany
County, perpetually enjoining and restrain-
ing the defendants from performing an oper-
ation on plaintiflf for the prevention of pro-
creation (fols. 1068-1075, 1079-1080, 1098-
1107).
Chapter 445 of the Laws of 1912, which
is now Article XIX of the Public Health
Law, Sections 350-353, created a Board of
nUTAll.l'D RlvVH'IW ()!■' T.ITlCA'i'l
Np'.W ^'()KK
235
l''.x;imiiu-rs of Fi'oliU'-Miiulod Crliwiii.-ils and
(UluT Oofoolivos.
The lU'foiulaiits ii\ the aluivo-ontitlod :k--
lioii coi\iiHisi' the said Hoavd.
Tliis action was bi'onght by plaintilT
against the di-fondants for an injunction lo-
straininK IIumu from performing or causing
to bo pcrfornicd an oiicralion upon bim to
prcYcnl procreation wbicb it is alU-gcd tlu-y
bad threatened to perform.
I'lie con\plaint alleges thai tbapier Itri of
llie Laws of I'.tU' in many respects violates
the Constitution of the United States,
particidarly in that it violates Section 10 of
Article 1, being a Bill of Attainder, and ,in
ex post facto law; subdivision :! of Section 3
of Article 111 in deiiriving citizens of a trial
by jury; Section a of Article IV in deiniving
citizens of the State of New York of the
lirivileges and inimtmities to which citizens
of other states are entitled; Article V of ibe
aniendnienls to the State (.'onstitution in
compelling a citi/en to be a witness against
liiiuself and deiniving citizens of life, liberty
and properly without due iMocess of law;
Article \'Ill of said amendments in author-
izing the infliction of cruel and unusual pun-
isbmenl; Section I of Article X 1 \' of said
amendment in abridging privileges and
imnuniities of citizens and dejiriving iiersons
of life, liberty and property without due
process of law, and denying to juMsons within
its jurisdiction the equal protection of the
laws.
In the proceeding which was instituted
under said statute, Mr. Kllis .1. Staley was
appointed by the court as required by statute,
to represent said Frank l)sborn, and the
court ti\ed a day in the order made on June
~, 191 a, for a hearing on the advisability of
performing an oiieration for the prevention
of procreation, in pursuance of said statute.
This action and the proceeding mulcr the
slalule were consolidated by agreement
between the attorneys for the respective
parlies. The stipulation (o this ell'ect pro-
vided :
"That any and all evidence there produced
upon said hearing and n|H-«n said trial shall
he deemed to have been taken and received
so far as the san\e may be iiroperly applicable
thereto in both of said be.irings and upon
sftid trial, and that both said hearings and
said actiiSn may be prosecuted by filing a
determination in the .same manner as if such
evidence had been separately taken and re-
ceived therein."
'I'he question involved is one of law. The
leslimony was taken in order that the court
might have the beuelit of the opinions of
men who bad made a .study of the subject.
Mr. Justice Rudd, at Trial Term, wrote an
opinion (pp. 303-316) in which be reached
the conclusion that Oshorn was denied the
equal protection of the laws.
POINT I.
THE WEIGHT OF EVIDENCE PRO-
DIKKD UPON THE TRIAL IS TO THE
KEbbXT THAT THE OPERATION
PRKSCRIHKD IN THE STATUTE
WILL Bl'. BENEFICIAL TO SOCIETY
AND THE PERSON OPERATED UPON
AND WOULD PROBABLY SAVE THE
STAPH A VAST AMOUNT OF MONEY.
iDn this head the evidence of Dr. Thom-
soii, a member of the Board of Feeble-
Minded l^xaminers, was to the eflFect that
be had made a careful examination of
Oshorn (fols. 118-1~'0) and his family history
(fols. lao-isa-l.vi), and that from his investi-
gation, the Oshorn family alone had cost
the Stale upwards of $10,000 to maintain
(fol. 1541.
He further testified, as did also Dr. An-
drews, that no harm would come to Osborn
from the operation (.fols. 156-157, 390-892).
Doctors Thomson and Andrews very care-
fully described the operation which they
intend to perforin on Osborn — that of vasec-
tomy, which is the operating for sterilizing
males to prevent procreation. It is a minor
operation in a male and not serious, and
from observation, uo ill effects come from
it (fols. l.'iT-1(>8, 388-290).
The weight of the evidence is to the effect
that vasectomy would absolutely prevent
procreation (fols. 349-352, 3SS), and that it
is a desirable thing to do in cases of feeble-
minded persons.
Dr. Bernstein testified that the proportion
of feeble-minded in this State is one to
every five hundred or one to every three
hundred and fifty persons. That is, there is
one mental defective to every five hundred
or every three hundred and fifty normal
individuals, and there are over 32,000 feeble-
niiuded persons in this State (fols. 371-:!73).
There are tO.OOO feeble-minded persons under
Stale care, and it costs the State $1,766,000
to care for them, or at the rate of $176.60 per
person (fol. ;!73-;i7;?'). Dr. Bernstein said
that there were not as many as 10,000 cared
for in New York in Slate institutions, but
236
Detailed Review of Litigation — New York
there were 6,000 in State and county institu-
tions, and that the cost of these was from
$150 to $225 a person (fols. 374-375). In
his institution alone there were 1,570
patients.
Dr. Davenport, who is connected with the
Carnegie Institution of Washington, and who
has made a study of heredity and feeble-
mindedness (fol. 580), testified:
"I have long felt that sterilization laws
as they have been enacted by the different
states, are premature, because in advance
of public sentiment now. On the other
hand, I would say, on broad theoretical
grounds, I think that the state has a right
to prevent procreation, as it has, or does, the
right of every one of the functions of the
individual, including his life and his liberty.
A state which limits itself in its control of
the individual is weak, and such limitations
tend to destroy society. I hold it to be a
loftier duty of the state to protect the happi-
ness of the children and adults of the next
generation than to protect from assault
adults of this generation. I am inclined to
think it better, now that the law has been
put on the statute books, to retain or amend
it, and act conservatively under it."
Dr. Bleecker Van Wagenen, who testified
on behalf of Osborn, said that he was in
favor of the operation, where he would get
the consent of those who were to be Operated
upon. He said:
"I don't say that I would continue that
always and forever, but at this present state,
to my mind, it is of the utmost importance
to the future, that it should for the present.
Now, that does not necessarily mean that
they cannot do any cases. Quite to the
contrary, some hundreds of cases have been
done and are continuing to be done under
that basis in California, on various types of
insane, feeble-minded and epileptics, and so
far as I have been informed, at this com-
paratively late date, they have not per-
formed compulsory operations, but several
hundred of the kind through first investigat-
ing the family line, • * * and persuading
them all, including where it is possible the
patient himself or herself, whatever the case
may be, that that is a good thing to do, and
then performing the operation." (Fols. 813-
814).
Dr. Fernald, called on behalf of Osborn, in
speaking of the eflFect of the operation on
the patient, testified:
"I doubt if the operation of vasectomy, if
it was safeguarded by proper mental prepara-
tion, which would undoubtedly be given,
would have any effect whatsoever, so far as
that is concerned." (Fol. 923.)
So, in the main, the doctors and experts
agree that the operation, which is known as
a minor one, and which merely consists, ir.
the male, of severing the spermatic duct, is a
simple operation, not necessary to give an
anaesthetic, and could be performed without
the use of cocaine even, and the patient
suffers no more pain than that of a pinch.
The patient would not be confined to his
bed.
In the female, the operation is not sc
simple, but would not be attended with seri-
ousness (Fols. 166-167). The operation in
the female is performed by the ejfcision of a
small portion of the heel of the Fallopian
tube and is not severe. The evidence estab-
lished that the operation does prevent, as
Dr. Thomson testified, procreation.
POINT II.
THE STATUTE DOES NOT VIO-
LATE THE CONSTITUTIONAL
RIGHTS OF THE PERSON UPON
WHOM THE OPERATION IS TO BE
PERFORMED.
In our researches we have been able to
find only three cases on the subject. Two
seem to be against the validity of the law,
while one is in favor of it. The Attorneys-
General of both California and Connecticut
have upheld the constitutionality of such a
law in opinions (see appendix to this brief).
The cases we have in mind are Smith vs.
Board of Examiners, 85 N. J. Law, 146;
Davis vs. Berry, 216 Fed. Reporter, 413.
Those two are against similar legislation.
The case of the State vs. Feilen, 41
Lawyers' Reports (N. S.), 418, also reported
in 70 Wash. 65, 165 Pacific, 75, favors the
law.
But these cases, we urge, are not decisive
of the question here. It seems to us that
the constitutionality of the statute should
be upheld, as being a proper exercise of the
police power, in promotion of the health
laws of the State.
In the case of Davis vs. Berry, supra, the
court had before it an Act of the Iowa legis-
lature, requiring the performance of the
operation of vasectomy on criminals who
had been twice convicted of a felony. The
District Court distinctly held that the law
in question was not void by reason of its
being ex post facto, but did condemn the law
DbtailEd Reviuw of Litigation — New York
237
because it denies the right of a hearing, and
that depriving him of the right to be heard
took away the right he had under the Con-
stitution to have his day in court, which
meant due process of law. The law was not
absolutely condemned more than to say that
it was the opinion of the court that vasectomy
provided the infliction of a cruel and unusual
punishment.
In the case of Smith vs. Board of Exam-
iners of Feeble-Minded Persons, of New
Jersey, the court condemned the law, which
provided for surgical operations for the pre-
vention of procreation upon feeble-minded
persons, because the statute was based upon
a classification that bore no reasonable rela-
tion to the subject of police regulation, and
hence denied to the individual of the class
so selected the equal protection of the law,
granted by the Fourteenth Amendment to
the Constitution of the United States. The
condemnation of the law as being an im-
proper classification was directed against
that part of it which required the operation
to be performed upon inmates confined in
the several charitable institutions in the
counties and State.
The learned judge pointed out that, "If
such object requires the sterilization of the
class so selected, then a fortiori does it re-
quire the sterilization of the vastly greater
class who are not protected from procreation
by their confinement in state or county insti-
tutions.''
The learned judge concluded: "The con-
clusion we have reached is that, without
regard to the power of the State to subject
its citizens to surgical operations, that shall
render procreation by them impossible, the
present statute is invalid, in that it denies to
the prosecutrix of this writ the equal pro-
tection of the laws to which, under the
Constitution of the United States she is
entitled."
In the case of the State vs. Feilen, the
court upheld the right of the State to sterilize
by means of vasectomy persons convicted
of statutory rape, and the learned judge who
wrote for the court has covered the ground
so thoroughly that we quote liberally there-
from:
"On the theory that modern scientific
investigation shows that idiocy, insanity,
imbecility, and criminality are congenital
and hereditary, the legislatures of California
(Stat. 1909, p. 1093, Chap. 720), Connecticut
(Pub. Laws 1909, Chap. 209), Indiana (Laws
1907, Chap. 215), Iowa (Laws 1911. Chap.
139), New Jersey (Laws 1911, Chap. 190),
and perhaps other states, in the exercise of
the police power, have enacted laws provid-
ing for the sterilization of idiots, insane,
imbeciles, and habitual criminals. In the
enforcement of these statutes vasectomy
seems to be a common operation. Dr. Clark
Bell, in an article on hereditary criminality
and the asexualization of criminals, found at
page 134, Vol. 27, Medico-Legal Journal,
quotes with approval the following language
from an article contributed to Pearson's
Magazine for November, 1909, by Warren
W. Foster, senior judge of the Court of
General Sessions of the Peace of the County
of New York: 'Vasectomy is known to the
medical profession as "an office operation,"
painlessly performed in a few minutes, under
an anaesthetic (cocaine), through a skin cut
half an inch long, and entailing no wound
infection, no confinement to bed.' 'It is less -
serious than the extraction of a tooth,' to
quote from Dr. William D. Belfield, of Chi-
cago, one of the pioneers in the movement
for the sterilization of criminals by vasec-
tomy, an opinion that finds ample corrobora-
tion among practitioners. » * * There appears
to be a wonderful unanimity of favoring
opinion as to the advisability of the steriliza-
tion of criminals and the prevention of their
further propagation. The Journal of the
American Medical Association recommends
it, as. does the Chicago Physicians' Club, the
Southern District Medical Society, and the
Chicago Evening Post, speaking of the In-
diana Law, says that it is one of the most
important reforms before the people, that
'rarely has a big thing come with so little
fanfare of trumpets.' The Chicago Tribune
says that 'the sterilization of defectives and
habitual criminals is a measure of social
economy.' The sterilization of convicts by
vasectomy was actually performed for the
first time in this country, so far as is known,
in October, 1899, by Dr. H. C. Sharp, of
Indianapolis, then physician to the Indiana
State Reformatory, at Jeflersonville, though
the value of the operation for healing pur-
poses had long been known. He continued
to perform this operation with the consent
of the convict (not by legislative authority) ■
for some years. Influential physicians hea'rd'
of his work and were so favorably impressed
with it that they indorsed the movement,
which resulted in the passage of the law now
upon the Indiana statute books. Dr. Sharp
has this to say of this method of relief to
society: 'Vasectomy consists of ligating
238
Detaii^ed Review of Litigation — Nijw York
and resecting a small portion of the vas
deferens. This operation is, indeed, very
simple and easy to perform; I do it without
administering an anaesthetic, either general
or local. It requires about three minutes'
time to perform the operation, and the sub-
ject returns to his work immediately, suflfers
no inconvenience, and is in no way impaired,
for his pursuits of life, liberty, and happiness,
but is eflfectively sterilized.'
"Must the operation of vasectomy, thus
approved by eminent scientific and legal
writers, be necessarily held a cruel punish-
ment under our constitutional restriction,
when applied to one guilty of the crime of
which appellant has been convicted? Cruel
punishments, in contemplation of such con-
stitutional restriction, have been repeatedly
discussed and defined, although we have not
been cited to, nor have we been able to find,
any case in which the operation of vasec-
tomy has been discussed."
The court held the punishment was not
cruel and inhuman and upheld the law.
Appended to this brief, the court will find
the opinion of Attorney- General Webb of
California by his deputy, R. C. Van Fleet,
upholding the constitutionality of the Sterili-
zation law of that state (Stat. 1909, p. 1093,
Chap. 720) and the opinion of Attorney-
General Light of Connecticut, in favor of
the constitutionality of the same kind of law
of that state (Pub. Laws Connecticut, 1909,
Chap. 309).
These opinions so fully cover the ground
that we use them as a part of our brief and
in that way simplify the extent of our argu-
ment.
POINT III.
THE LAW IN QUESTION IS A
VALID EXERCISE OF THE POLICE
POWER AND DOES NOT OFFEND
THE CONSTITUTION.
For the convenience of the court we shall
divide this point into various subheads.
(1) POUCE POWER.
The police power is an attribute of
sovereignty which is possessed by every
sovereign state and is a necessary attribute
of every civilized government.
Judge Cooley defines police power of a
state as that which "embraces its whole
system of internal regulation, by which the
state seeks not only to preserve the public
order and to prevent oflfenses against the
state, but also establish for the intercourse
of citizens with citizens those rules of good
manners and good neighborhood which are
calculated to prevent conflict of rights, and
to insure to each the uninterrupted enjoy-
ment of his own so far as is reasonably
consistent with a like enjoyment of the rights
of others."
This definition has been quoted with
approval many times.
Hathorn vs. Natural Carbonic Gas Co.
194 N. Y., 326, p. 344.
By means of this power the Legislature
exercises supervision over matters involving
the common weal and enforces the observ-
ance by each individual member of society
of the duties which he owes to others and
to the community at large.
People vs. King, 110 N. Y. 418.
The courts have been unable or unwilling
to definitely describe a rule that may be
followed which will cover all cases, but
instead have determined as each case is pre-
sented whether it falls within or without th«
appropriate limits.
People vs. Budd, 117 N. Y. 1.
With this very brief reference to the
police power, suffice it to say that it has been
defined as the law of necessity and as the
power of self protection on the part of the
community.
State of Wis. vs. Redmon, 14 L. R. A.
(N. S.), 239.
(2) OVER WHAT SUBJECTS GENERALLY THE
POLICE POWER EXTENDS.
One of the most important fields of legis-
lation in which the State may enact measures
under the police power, consists of regula-
tions in the interest of public health and
safety.
Jacobson vs. Massachusetts, 197 U. S. i:
For instance, it has been held that law.-
may be passed providing for drainage an<
sewer systems. (New Orleans Gas Light
Co. vs. Drainage Com., 197 U. S. 453).
Requiring the owners of a lot which has
been declared to be dangerous to the public
health to fill it up to a certain level.
(Charlestown vs. Werner, 38 S. C. 488.)
Making it a penal offense to discharge any
refuse matter in a running stream. (People
vs. Hupp, 53 Colo., 80, 123 Pac. 651.)
Forbidding a riparian owner on a pond
from which a municipal water supply is
taken, to bathe in the pond. (State vs.
Morse, 84 Vermont 387.)
For bidding any one to make use of, for
the purpose of drinking, of polluted water
Detaii^ed Review OF Litigation — New York
239
supply. (State Board of Health vs. St.
Johnsbury, 82 Vermont, 276.)
Providing for the collection and removal
of refuse in thickly populated cities. (State
vs. Robb, 100 Me. 180.)
Establishing quarantine regulation notices
to owners of live stock. (Kimmish vs. Ball,
129 U. S. 217.)
Providing for the destruction of noxious
weeds. (St. Louis vs. Gait, 179 Mo. 8.)
Providing for the destruction of trees
attacked by incurable infectious diseases.
(State vs. Main, 69 Conn. 123.)
For regulation in behalf of public morals
like the suppression of gambling. (Ah Sun
vs. Wittman, 198 U. S. 500.)
For the prevention of fraud and deceit.
(People vs. Freeman, 242 111. 373.)
To regulate skill and learning in profes-
sions. (Dent vs. State of W. Va., 129 U. S.
114.)
To enact laws in the promotion of the
general welfare. (Chicago, B. and Q. R. R.
Co. vs. Illinois, 200 U. S. 561.)
It may enact laws to preserve and promote
the public welfare even at the expense of
private rights. (Walker vs. Jameson, 114
Ind. 591.)
An important class of statutes sustained
as tending to promote the public welfare are
those which relate to physical welfare of the
members of the body politic. It has been
said that it is to the interest of the State to
have strong, robust, healthy citizens, capable
of self-support, of bearing arms and adding
to the resources of the country. Laws for
this purpose are made for the protection of
citizens from overwork and requiring a
general day of rest to restore his strength
and preserve his life for the obvious pro-
tection of the public welfare.
Holden vs. Hardy, 169 U. S. 366.
People vs. Havnar, 149 N. Y. 195.
And so we' might go on with many more
cases which cover the police power, and
which cases have been held to be valid.
(3) THE ACT IN QUESTION DOES NOT OFFEND
BECAUSE IT IS AN EX POST FACTO LAW.
This was clearly held in Davis vs. Berry
(sui>ra).
The Relator Says It Deprives Him of His
Life and Liberty Without Due Process of
Law.
But it is fundamental that the possession
Snd enjoyment by 'the individual of all of his
rights, even that of liberty itself, are subject
to such reasonable regulations and restraints
as are essential to the preservation of health,
safety and the welfare of the community.
People vs. Morse, 84 Vermont 387.
(4) THE RELATOR SAYS IT DEPRIVES HIM OF
HIS LIBERTY AND THE EQUAL PROTECTION
OF THE LAWS.
It has been repeatedly said that the guar-
antee of equal protection of the laws means
that no persons or classes of persons shall
be denied the same protection of the laws
which is enjoyed by other persons or other
classes under like circumstances and their
rights, liberty and property, and in the pur-
suit of happiness.
Santa Clara County vs. So. Pacific R. R.
Co., 118 U. S. 394.
Moore vs. Missouri, 159 U. S. 673.
The act in question operates against all
feeble-minded, epileptics, criminals and other
defective inmates confined in State institu-
tions.
It has been held that the State may classify
persons and objects for the purpose of legis-
lation so long as the classification is based
on proper and justifiable distinction.
Chicago, M. and St. Paul R. R. Co. vs.
Westby, 178 Fed. 619.
And the legislature has a right to dis-
criminate amongst those persons and to
limit the application of its laws to a portion
of them only.
Grainger vs. Douglass Park Jockey Club,
148 Fed. 513.
The law will be upheld so long as it oper-
ates alike on all persons and property
similarly situated.
Barbier vs. Connell, 113 U. S. 27.
It does so operate here — on all persons
confined in State institutions, etc.
Therefore, it seems to us the classification
is reasonable and should be held to not
offend the provisions of the Constitution
denying relator the equal protection of the
laws.
(S) THE STATUTE DOES NOT DEPRIVE OSBORN
OF HIS LIFE, LIBERTY AND PROPERTY WITH-
OUT DUE PROCESS OF THE LAW.
The statute specifically gives him notice
and opportunity to be heard through an
attorney to be appointed by him and to thus
defend the proceedings.
That is all that the law requires to be done.
240
DETAILED Revibw of Litigation — New York
Simon vs. Craft, 183 U. S. 427.
We urge that the law in question may be
likened unto that which requires compulsory
vaccination as a condition of the privilege
of attending public schools. Such legislation
has been upheld.
Matter of Viemeister, 179 N. Y. 335.
Jacobson vs. Massachusetts, 197 U. S. 11.
In the case of Matter of Viemeister
(supra), Section 210 of the Public Health
Law which excluded children and persons
not vaccinated from the public schools until
vaccinated, was attacked on the ground that
it violated the constitution.
To sustain the law in question here we call
the court's attention to the decision of the
Court of Appeals in that case in an able
opinion written by Judge Vann in 1904. The
attack on the law was that it violated the
Constitution which guarantees the rights,
privileges and liberties of its citizens, but the
Court of Appeals sustained the statute as a
valid exercise of police power.
Judge Vann said (p. 238) :
"The police power, which belongs to every
sovereign state, may be exerted by the legis-
lature subject to the limitations of the Consti-
tution, whenever the exercise thereof will
promote the public health, safety or welfare.
The power of the legislature to decide what
laws are necessary to secure these objects
is subject to the power of the courts to de-
cide whether an act purporting to promote
the public health or safety has such a reason-
able connection therewith as to appear upon
inspection to be adapted to that end. A
statute entitled a health law must be a
health law in fact as well as in name, and
must not attempt in the name of the police
power to effect a purpose having no adequate
connection with the common good. As we
have recently said, it 'must tend in a degree
that is perceptible and clear towards the
preservation of the
health *
welfare of the community, as those words
have been used and construed in the many
cases heretofore decided.' (Health Dept, of
N. Y. vs. Rector, etc., 145 N. Y. 38, 39.)
When the sole object and general tendency
of legislation is to promote the public health,
there is no invasion of the Constitution, even
if the enforcement of the law interferes to
some extent with liberty and property. These
principles are so well established as to require
no discussion, and we cite but a few of many
authorities relating to the subject. * • •
"The fact that the belief is not universal
is not controlling, for there is scarcely any
belief that is accepted by every one. The
possibility that the belief may be wrong and
that science may yet show it to be wrong is
not conclusive, for the legislature has the
right to pass laws which, according to the
common belief of the people, are adapted to
prevent the spread of contagious diseases.
In a free country where the government is
by the people through their chosen repre-
sentatives, practical legislation admits of no
other standard of action, for what the people
believe is for the common welfare must be
accepted as tending to promote the common
welfare, whether it does in fact or not. Any
other basis would conflict with the spirit of
the Constitution and would sanction meas-
ures opposed to a republican form of govern-
ment.
"While we do not decide and cannot decide
that vaccination is a preventive of smallpox,
we take judicial notice of the fact that this
is the common belief of the people of the
State and with this fact as a foundation, we
hold that the statute in question is a health
law, enacted in a reasonable and proper exer-
cise of the police power. It operates impar-
tially upon all children in the public schooh
and is designed not only for their protection
but for the protection of all the people of the
State. The relator's son is excluded from
school only until he complies with the law
passed to protect the health of all, himself
and his family included. No right conferred
or secured by the Constitution was violated
by that law or by the action of the school
authorities based thereon."
We respectfully submit that that part of
the health law in question tends to promote
the welfare of the community and protect
the public health and hence, is a valid exer-
cise of the police power.
In deciding the questions here involved, we
call the court's attention to the fact that in
a number of cases the judicial branch of our
government has held that the presumption is
always in favor of the constitutionality of the
statute.
People vs. West, 106 N. Y. 293.
And the courts have gone so far as to
pronounce that in no doubtful case should
they determine legislation to be contrary to
the Constitution.
Munn vs. Illinois, 94 U. S. 113.
I>ETAiLUD Review ot Litigation — New York
241
And that the courts will resolve every
reasonable doubt in favor of the validity of
the enactment.
Sinking Fund Cases, 99 U. S. 700, on p.
718.
POINT IV.
THE JUDGMENT APPEALED FROM
SHOULD BE REVERSED AND THE
STATUTE HELD CONSTITUTIONAL.
Dated, September 30th, 1918.
Respectfully submitted,
MERTON E. LEWIS,
Attorney-General,
Attorney for Defendants.
WILBER W. CHAMBERS,
Deputy Attorney-General,
Of Counsel.
Appendix:
This brief was accompanied by the
opinion of the Attorney-General of California
upholding the validity of the sterilization
statute of that state. (For full text of the
opinion see Chapter IX, Sec. 1.)
b. Case pending at time of repesd of statute.
Pending decision by the Court of Appeals,
the legislature of the State of New York re-
pealed the statute on May 10, 1930 (Chapter
619 of the Laws of 1930).
Upon this repeal the questions involved
became purely academic and the appeal in
the Court of Appeals was withdrawn. Thus
the litigation in the matter of eugenical steril-
ization in the State of New York, based upon
the Law of 1913 (Chapter 44S), never re-
ceived a final judicial opinion of the highest
court of the state.
CHAPTER VII. (Continued)
PART VI. NEVADA.
1. District Court of the Fourth Judicial District of the State of
Nevada.
a. Sentence , 243
3. United States District Court in and for Nevada.
a. Petition of Plaintiflf 245
b. Order to Show Cause and Restraining Order 347
c. Answer 848
d. Stipulation ; 249
e. Plaintiff's Brief 249
f. Decision of United States District Court 250
DutaiIvUd Review of Litigation— Nevada
243
(VI.) NEVADA.
(Section 28, Crimes and Punishments, Act
March 17, 1911.)
The Nevada statute is copied after the
first law of the State of Washington. The
fact that the first Washington statute was
upheld and that of Nevada held invalid was
due to differences in the constitutions of the
two states; that of Washington forbids cruel
punishment while the Nevada Constitution
forbids cruel and unusual punishment.
1. DISTRICT COURT OF THE
FOURTH JUDICIAL DISTRICT OF
THE STATE OF NEVADA.
On August 14, 1915, in the District Court
of the Fourth Judicial District of the State
of Nevada, in and for Elko County, Pearley
C. Mickle was sentenced to sterilization as a
punishment for rape.
The principal documents in the case
follow :
a. Sentence. August 14, 1915.
'•1
J
THE STATE OF NEVADA,
Plaintiff,
vs. \ Rape.
PEARLEY C. MICKLE,
Defendant.
BE IT REMEMBERED, That on the
13th day of August, 1915, same being a
regular judicial day of the District Court of
the Fourth Judicial District of the State of
Nevada, in and for Elko County, the afore-
mentioned court being duly convened, with
the regular officers thereof present, and the
State represented by E. P. Carville, Esq.,
District Attorney, and C. A. Cantwell, Esq.,
Assistant District Attorney, the above men-
tioned defendant was duly brought before
the court and sentenced by Hon. E. J. L.
Taber, Judge of said court.
COURT: This is the time set for pro-
nouncing judgment in the case of the State
of Nevada, plaintiff vs. Pearley C. Mickle.
Mr; Mickle, you may stand up. As you
were informed before today, the District
Attorney 'filed an information against you
today charging you with the crime of rape,
allegfed to have been committed in the-
County of Elko, State of Nevada, on the
10th day of August, 1915. The information
states that at that time and place you forcibly
had- carnal knowledge of a female, Mrs.
George W. Fox, against her will and with-
out her consent, you being then and there
an adult male person. Upon your arraign-
ment this morning you entered a plea of
guilty to this information, and your plea
was entered on the minutes of the court,
and with your consent this was the time set
for pronouncing judgment or sentence. Have
you any legal cause to show why judgment
should not now be pronounced against you?
DEFENDANT: No, sir, I haven't.
COURT: Is there anything you want to
say, Mr. Mickle?
DEFENDANT: No, sir.
COURT: Will you state how old you
are?
DEFENDANT: Nineteen.
COURT: Have you the discharge papers
showing his age?
CARVILLE: Twenty-two; he was born
in '93.
DEFENDANT: I enlisted when I was
fifteen, but enlisted as eighteen. My mother
and father has the birth certificate.
COURT: Your folks are living, Mr.
Mickle?
DEFENDANT: Yes, sir.
COURT: Where do they live?
DEFENDANT: Mother lives in Port-
land, Oregon, and father in New York.
COURT: Will you state what your
father does?
DEFENDANT: A wagon maker.
COURT: Your mother is a good woman,
is she?
DEFENDANT: Yes, sir.
COURT: How did you come to commit
such a crime as this?
DEFENDANT: By drinking steady, and
was just sobering up. When I am sobering
up it drives me crazy. Whisky and wine
puts me ofif my head.
COURT: You mean to say you were
just sobering up after having been drunk?
DEFENDANT: Yes, sir, just sobering
up.
COURT: Have you ever done anything
of this kind before.
DEFENDANT: No, sir.
COURT: Anything like it at all?
DEFENDANT: No, sir, your Honor.
COURT: Have you always been a
healthy person?
DEFENDANT: Yes, sir.
COURT: Did you ever have fits of any
kind?
DEFENDANT: Epileptic fits.
COURT: Do you wish to vouch to me
for that? Do you assure me that is the
truth?
244
Detailed Review of Litigation — Nevada
DEFENDANT: Yes, sir, that is the
truth; I can prove it.
COURT: How long since you had one?
DEFENDANT: The last one I had was
last March.
COURT: How many have you had?
DEFENDANT: I have had ten, I guess,
in the last four years.
COURT: Anything like that in your
family before, your father or mother?
DEFENDANT: Not that I know of.
I have a cousin that has them.
COURT: You don't claim to be insane,
do you, Mr. Mickle?
DEFENDANT: No, sir.
COURT: You don't pretend to be crazy ^
DEFENDANT: No, sir.
COURT: Well, now, I want to be per-
fectly fair with you. A man in your condi-
tion is under a strong temptation to tell lies.
DEFENDANT: I am not telling any
lies, your Honor; I am telling the straight
truth.
COURT: Sometimes a inan tells a lie
when he thinks it will help him, when it is
against him and that may be the case with
your epilepsy.
DEFENDANT: I can prove that.
COURT: Would you make that state-
ment that you have epileptic fits if you knew
it was going to hurt you with me instead of
helping you?
DEFENDANT: No, sir, I wouldn't.
COURT: You mean you would tell a lie
about it if you thought it would help you
with me?
DEFENDANT: No, sir, I wouldn't.
COURT: Perhaps you do not under-
stand me. Supposing you knew by telling
me you had epileptic fits that I would
punish you more than I would otherwise.
That might seem strange to you, but sup-
posing you knew that, would you still say
you had them?
DEFENDANT: I have. That . is the
truth; hope to God to die.
COURT: Of course, Mr. Mickle, I
wouldn't have you understand what the pun-
ishment is, but I don't mean to say when I
remind you the court might inflict the death
penalty on you, because the 'court cannot
do it in this case, but it might affect you
injuriously in some other way. And no
matter whether it does or not, you still say
that is the truth?
DEFENDANT: That is the truth, nope
to God to die.
COURT: Is there any place I could
investigate your father or mother, or any-
body else you would be willing to have me
inquire of whether this is true or not?
DEFENDANT: Yes, sir.
COURT: Will you tell me their address?
DEFENDANT: Yes, sir, Mrs. Jennie
Pounds, Ceres, New York.
COURT: Is that a small town or village?
DEFENDANT: A small village.
COURT: You don't need any street
address?
DEFENDANT: No.
COURT: Is that your mother?
DEFENDANT: My aunt.
COURT: She knows that you had fits?
DEFENDANT: Yes, sir, I was there
last March when I had these fits.
COURT: And she is living, so far as
you know, at this time?
DEFENDANT: She is living, as far as
I know, at this time.
COURT: The court now considers and
adjudges that you, by reason of your plea
of guilty to this information, are guilty of
the crime of rape, as therein alleged, and I
do now pronounce the judgment and sen-
tence of this court that for that crime you
be imprisoned and confined in the state
prison of this State, and the court fixes as a
minimum of such confinement a period of
five years; and the court fixes as a maximum
the term an^ duration of your natural life.
And at this time, by virtue of the provisions
of 6293 Revised Laws —
Mr. Mickle, I am going to order that an
operation be performed upon you. I want
to tell you it is not the operation of castra-
tion. Do you know what that means? It is
not that; It is an operation which many
hundreds of men have undergone and that
we call baseptoniy (vasectomy?) The opera-
tion does not take away the power of sexual
intercourse, but it does- take away the power
of .begetting children. I was not going to
pronounce that sentence until I found from
you that you were subject to epileptic fits
And I am going to put it in my judgment.
I am. going to give considerable time for
that to be done, so it need not be done in a
hurry, so the authorities at Carson will
have plenty of time to investigate and see if
you have told the truth. If they find that
DETAitED Review op Litigation — Nevada
245
you have told the truth the operation may
be performed. While I do not think you are
entitled to very much sympathy, still I want
to be fair with you and tell you that that
operation is not one that causes much pain;
in fact, the doctors say it is not so serious
as having a tooth pulled, so far as the pain
is concerned. Furthermore, they do not open
your body to any extent; it is less than half
an inch, and is an operation performed in a
very few minutes. It doesn't have any such
result upon you as castration would. I tell
you this in advance so you may know the
sentence the court is going to pronounce
upon you.
The court further pronounces judgment,
and orders, adjudges and decrees that an
operation be performed upon you for the
prevention of procreation; that said opera-
tion be performed within one year of the
date of your incarceration in the state prison
of this State by virtue of this judgment;
that the operation to be performed, as hereby
ordered, shall be the operation known to
medical science as baseptomy (vasectomy?)
or such other operation as shall be deter-
mined upon by the surgeon or surgeons who
shall be designated to perform the same.
And the warden of the said State Prison of
the State of Nevada, is hereby directed to
have this order and judgment carried into
effect at the said state prison by some quali-
fied and capable surgeon or surgeons; that
said operation shall not consist of castration.
And the court further orders that said opera-
tion shall be performed scientifically and
with the greatest care and humanity
possible.
Mr. Mickle, this court would not have
ordered this operation if it had not been for
your own statement that you are subject to
epileptic fits. And I want' you to understand
further, that horrible and loathsome as
your crime has been, that this operation is
not ordered by this court for the purpose of
increasing your punishment. The reason
this court makes this order is that epileptic
fits are hereditary and it is for that reason.
The court wishes to protect society against
any oiifspring from you, is why this order is
made. Is there anything you wish to say,
Mr. Mickle?
DEFENDANT: No, sir.
COURT: Defendant is remanded.
CERTIFICATE.
I do hereby certify that oii the 12th day of
August, 1915, I was duly appointed, qualified
and acting reporter of the Fourth Judicial
District Court of the State of Nevada, in
and for Elko County; that as such reporter,
on said date, I took down in shorthand the
proceedings had in the pronouncing of judg-
ment and senten-ce on the defendant in the
case of The State of Nevada vs. Pearley C.
Mickle; that the foregoing, consisting of
seven pages, inclusive, is a full, true, and
correct transcript of said proceedings.
Dated, at Elko, Nevada, this 14th day of
August, 1915.
B. H. WALTERS,
Official Reporter.
ENDORSED: FOURTH JUDICIAL
DISTRICT COURT OF STATE OF
NEVADA, IN AND FOR ELKO
COUNTY. THE STATE OF NEVADA,
PLAINTIFF, VS. PEARLEY C.
MICKLE, DEFENDANT. SENTENCE.
TRANSCRIPT.
2. THE UNITED STATES DISTRICT
COURT.
May 25, 1918. The United States District
Court in and of Nevada held that the
Nevada Act of March 17, 1911, provides for
an unusual punishment and is therefore con-
trary to Section 6, Article I of the Constitu-
tion of Nevada.
PRINCIPAL DOCUMENTS.
a. Petition of Plaintiff.
Sentence of State District Court:
IN THE DISTRICT COURT OF THE
UNITED STATES, IN AND FOR
THE DISTRICT OF NEVADA.
PEARLEY C. MICKLE,
Plaintiflf,
vs.
D. S. DICKERSON, as Warden
of the Nevada State Prison, and S- Petition
DONALD T. McLEAN, as
Physician of the Nevada State
Prison,
Defendants. J
Comes Pearley C. Mickle, the plaintiff
above-named, by and through his attorneys,
Woodburn & Bartlett, Esqrs., and respect-
fully shows unto the above entitled court,
the following:
I.
That the plaintiff is a citizen and resident
of the State of Pennsylvania.
246
Detailed Review oe Litigation — Nevada
II.
That the above-named defendants, D. S.
Dickerson and Donald T. McLean, are re-
spectively the warden and physician of the
Nevada State Prison at Carson City, Nevada,
and are citizens and residents of the State
of Nevada.
III.
That on the 14th day of August, A. D.
1915, plaintiff herein was convicted in the
Fourth Judicial District Court of the State
of Nevada, in and for the County of Elko,
of the crime of rape, and on said date was
sentenced by the Hon. E. L. Taber, the
judge of said court, to an indeterminate sen-
tence of not less than five years in the
Nevada State Prison; that at the time of
pronouncing said sentence said court further
ordered and directed, under the supervision
and direction of the defendant, D. S. Dicker-
son, as warden of the said Nevada State
Prison, that within one year from said date
an operation be performed upon the person
and body of the plaintiff herein to prevent
procreation; said operation, as plaintiff is
informed and believes, being commonly
known and called the operation of vasec-
tomy.
IV.
That said operation of vasectomy which
will prevent procreation, was, by said Fourth
Judicial District Court of the State of Ne-
vada, in and for the County of Elko, ordered
to be performed upon the person and body
of petitioner under and by virtue of the pro-
visions of Section 6293 of the Revised Laws
of the State of Nevada, said section being as
follows:
"Whenever any person shall be adjudged
guilty of carnal abuse of a female person
under the age of ten years, or of rape, or
shall be adjudged to be an habitual criminal,
the court may, in addition to such other
punishment or confinement as may be im-
posed, direct an operation to be performed
upon such person, for the prevention of pro-
creation; provided, the operation so directed
to be performed shall not consist of castra-
tion."
V.
That there is no other pretended authority,
statutory or otherwise, in the State of Ne-
vada, permitting or authorizing the perform-
ance of said operation to prevent procreation
upon the person and body of plaintiff, except
as contained in said Section 6293 of the Re-
vised Laws of the State of Nevada.
VI.
That petitioner is informed and believes,
and upon such information and belief states
the fact to be, that said operation of vasec-
tomy so ordered by said. Fourth Judicial
District Court of the State of Nevada, in
and for the County of Elko, consists of the
ligation of the fallopian tube of the human
body.
VII.
That said Section 6293 of the Revised
Laws of the State of Nevada authorizing
the performance of said operation which will
prevent procreation is void and of no effect,
and violates Section 6, of Article I of the
Constitution of the State of Nevada, in that
the' punishment therein permitted and author-
ized is cruel and unusual; said Constitutional
provision being as follows:
"Sec. 6: Excessive bail shall not be re-
quired, nor excessive fines imposed, nor shall
cruel or unusual punishments be inflicted,
nor shall witnesses be unreasonably de-
tained."
VIII.
That by virtue and in pursuance of the
said order of said Fourth Judicial District
Court of the State of Nevada, in and for the
County of Elko, the defendant, D. S. Dicker-
son, as warden of said Nevada State Prison,
has ordered and directed the defendant,
Donald T. McLean, as physician of said
Nevada State Prison, to perform said opera-
tion of vasectomy to prevent procreation
upon the body and person of petitioner on
the 31st of July, A. D. 1916, and petitioner
alleges that said defendants will perform said
operation unless restrained from so doing.
IX.
Plaintiff further shows to the court, and
as an additional ground why said operation
should not be performed, that the Honorable
E. L. Taber, the judge of said Fourth Judi-
cial District Court of the State of Nevada,
in and for the County of Elko, ordered and
directed the performance of said operation
to prevent procreation, not as punishment of
the crime of rape, as authorized by said
Section 6293 of the Revised Laws of the State
of Nevada, but for the reason that said de-
fendant was an epileptic.
X.
That there is no authority, statutory or
otherwise, authorizing the performance of an
operation to prevent procreation upon epi-
leptics.
Detailed Review op Litigation — Nevada
247
XI.
That petitioner was never formally charged
with being an epileptic, but was adjudged
and decreed to be an epileptic without due
process of law in contravention of the Four-
teenth Amendment to the Constitution of the
United States.
Xil.
That if said operation is performed, plain-
tiff will suffer great and irreparable injury.
WHEREFORE, plaintiff prays for an
order restraining and enjoining the above-
named defendants from the performance of
said operation of vasectomy, or any other
operation to prevent procreation upon the
person and body of the plaintiff herein, and
for such other and further relief as to this
Honorable Court may seem meet and proper
in the premises.
WOODBURN & BARTLETT,
Solicitors for Petitioner.
United States of America, I
State of Nevada, Iss:
County of Washoe, J
William Woodburn, being first duly sworn,
deposes and says that he is one of the solic-
itors for the plaintiff named in the foregoing
petition; that he has read the said petition
and knows the contents thereof, and that the
statements therein made are true, according
to his best information and belief; that he
makes this affidavit because of the fact that
the said Pearley C. Mickle, plaintiff above
named, is absent from the County of
Washoe, State of Nevada, and is now an
inmate of the Nevada State Prison at Carson
City, Nevada.
WILLIAM WOODBURN.
Subscribed and sworn to before me this
29th day of July, 1916.
JONATHAN PAYNE,
(Notarial Seal) Notary Public.
b. Order to Show Cause and Restraining
Order.
IN THE DISTRICT COURT OF THE
UNITED STATES, IN AND FOR
THE DISTRICT OF NEVADA.
Pearley C. Mickle,
vs. Plaintiff,
D. S. Dickerson, as
Warden of the Ne-
vada State Prison,
and Donald T. Mc-
Lean, as Physician
of the Nevada State
Prison,
Defendants J
Order
■ to Show Cause
and
Restraining Order.
On petition of the plaintiff, duly verified,
it is
ORDERED, That the said defendant,
D. S. Dickerson, as warden of the Nevada
State Prison, and the said defendant, Donald
T. McLean, as physician of said Nevada
State Prison, show cause before this court,
at Carson City, Nevada, on the 7th day of
August, 1916, at ten o'clock a. m. of said
day, why an injunction should not be granted
restraining the said defendant, D. S. Dicker-
son, as warden of the Nevada State Prison,
and the said Donald T. McLean, as physician
of the Nevada State Prison, from performing
an operation of vasectomy, or any other
operation to prevent procreation upon the
person and body of Pearley C. Mickle, and
for such other and further relief as may
seem meet and proper in the premises.
And it is further ORDERED, That said
defendants, their agents, deputies and em-
ployes be, in the meantime, restrained from
performing an operation of vasectomy, or
any other operation to prevent procreation,
upon the person and body of said Pearley C.
Mickle on the thirty-first day of July, 1916,
or at any other time, until further order of
this court.
It is further ORDERED, That a copy of
the petition filed herein, attached to a copy
of this Order, be served upon the said de-
fendant, D. S. Dickerson, as warden of the
Nevada State Prison, and the said Donald
T. McLean, as physician of the Nevada State
Prison, from performing an operation of
vasectomy, or any other operation to pre-
vent procreation upon the person and body
of Pearley C. Mickle, and for such other and
further relief as may seem meet and proper
in the premises.
And it is further ORDERED, that said
defendants, their agents, deputies and em-
ployes be, in the meantime, restrained from
permorming an operation of vasectomy, or
any other operation to prevent procreation,
upon the person and body of said Pearley C.
Mickle on the thirty-first day of July, 1916,
or at any other time, until further order of
this Court.
It is further ORDERED that a copy of
the petition filed herein, attached to a copy
of this Order, be served upon the said de-
fendant, D. S. Dickerson, as Warden of the
Nevada State Prison, and upon the said
Donald T. McLean, as Physician of the
said Nevada State Prison.
E. L. FARRINGTON,
Dated, July 39th, 1916. ^''^''^^ J""^^^-
248
Detailed Review oe Litigation — Nevada
ANSWER,
c. Answer of Defendants.
IN THE DISTRICT COURT OF THE
UNITED STATES, IN AND FOR
THE DISTRICT OF NEVADA.
PEARLEY C. MICKLE,
Plaintiff,
vs.
D. S. DICKERSON, as War-
den of the Nevada State >. ANSWER.
Prison, and DONALD T.
McLean, as Physician of
the Nevada State Prison,
Defendants./'
Come now D. S. DICKERSON and
DONALD T. McLEAN, defendants herein,
by their attorney, GEO. B. THATCHER,
Attorney-General of the State of Nevada,
and for answer to the complaint herein
admit, deny and aver as follows, to-wit:
I.
Admit all the matters and things contained
in paragraphs I and II of said complaint.
11.
Admit that on the date mentioned in para-
graph in of said complaint that plaintiff was
convicted of the crime of rape as alleged in
said paragraph, but allege that the sentence
of said court was for not less than a mini-
mum of five years and a maximum of life
imprisonment, and admit all the other
matters and things contained in said para-
graph III of said complaint.
III.
Admit all the matters and things contained
in paragraphs IV and V of said complaint.
IV.
In answer to paragraph VI of said com-
plaint these defendants deny that the opera-
tion of vasectomy consists of the ligation of
the fallopian tube of the human body, but
allege that said operation is a resection of
the vas deferens.
V.
In answer to paragraph VII of said com-
plaint these defendants deny that the per-
formance of said operation is a cruel and
unusual punishment within the meaning of
Section 6 of Article I of the Constitution of
the State of Nevada.
VI.
Admit all the matters and things contained
in paragraph VIII of said complaint.
VII.
Deny all the matters and things contained
in paragraphs numbered IX, X, and XI of
said complaint.
VIII.
Deny all the matters and things contained
in paragraph XII of said complaint, and state
that if said operation is performed, defend-
ant will not suffer great or irreparable injury,
or any injury at all.
IX.
Further answering said complaint, these
defendants allege that the plaintiff herein has
not legal capacity to bring this action for
the reason that it appears from said com-
plaint and defendants in this Answer allege
that the plaintiflF is an inmate of the Nevada
State Prison and is lawfully confined therein
under a judgment and sentence of a court of
competent jurisdiction upon a criminal
charge, which said sentence may extend in
duration to the end of the natural life of said
plaintiff, and that therefore the said plaintiff
is civilly dead and is not entitled to sue, a
full and true copy of which judgment and
sentence is hereto attached, marked "Exhibit
A" and made a part hereof.
THEREFORE, having fully answered
said complaint, these defendants pray that
the restraining order herein may be vacated
and set aside, and that they have judgment
for costs in this behalf expended.
Attorney-Genera!.
Attorney for Defendants.
State of Nevada,
County of Ormsby, ss:
DONALD T. McLEAN, being first duly
sworn on oath, deposes and says: That he
is one of the defendants herein; that he has
read the above and foregoing Answer and
that the same is true of his own knowledge,
except as to the matters which are therein
stated to be on information and belief, and
as to those matters, he believes it to be true.
Subscribed and sworn to before me this
day of August, A. D. 1916.
Notary Public.
Detaii<ed Review op Litigation — Nevada
249
d. Stipulation.
IN THE DISTRICT COURT OF THE
UNITED STATES, IN AND FOR
THE DISTRICT OF NEVADA.
PEARLEY C.
MICKLE,
Plaintiff,
•Stipulation.
D. S. DICKERSON, as
Warden of the Nevada
State Prison, and DON-
ALD T. McLean, as
Physician of the Nevada
State Prison,
Defendants.
It is hereby stipulated and agreed by and
between the parties hereto that this action
is submitted for determination by the judge
of the above entitled court upon the sole
question of the constitutionality of Section
6293, Revised Laws of Nevada, 1913.
It is further stipulated and agreed that if
the judge of said court shall determine that
said section of said laws is constitutional,
then the above action be dismissed.
Signed by the Attorney for Plaintiff,
and the Attorney for Defendant.
e. Plaintiff's Brief.
CRUEL AND UNUSUAL PUNISH-
MENT.
It is not the barbarous or cruel or torturous
bodily punishment, or its severity, but I wish
to address myself more particularly to thd
unusual character of the punishment which
is just as much within the prohibition of the
constitutional provision as "cruel punish-
ment."
The case upon which petitioner mainly
relies, is that of Davis vs. Berry, 216 Federal,
at pages 413 and 416. Here the court lays
down the rule in plain and unmistakable
terms, that the operation of vasectomy,
insofar as it offends the sense of decency
and propriety of society, is on a par with
castration.
The operation of castration was first pro-
vided in the Twelfth Century by Henry II,
as a punishment for bringing any mandate
from the Pope, or one in authority in church
affairs, which was declared an act of treason.
Other similar punishments were the bar-
barities of quartering, hanging in chains,
burning, acts similar to those provided by
the Spanish Inquisition, all of which were
intended by the framers of our Constitution
to be banished for ail time.
In the Berry case the court mentioned the
fact that Blackstone made no mention in his
Commentaries of the performance of the
operation of castration for punishment, very
likely, as the court stated, for the reason that
even at that date, with the advance of civiliza-
tion, it was so revolting and repugnant as to
have no place in the cruel punishments of
even that day.
In the Berry case reference is made to the
case of State vs. Feilen, 136 Pacific, 75,
which sustains the contention of defendant.
Two grounds were raised in the Berry case,
viz : That the Constitution was offended not
only as to the cruel and unusual punishment
clause; but that it also offended the due
process of law clause.
The court, in the Berry case, in its refer-
ence to the Feilen case, merely distinguished
it from the case under consideration as to
the due process of law feature, and then,
as will be observed, proceeded to hold the
statute unconstitutional as being repugnant
to the cruel and unusual clause.
(Quote from Whitten vs. State, 47 Ga.,
397; cited in Weems vs. United States, 54
Law Ed. 813.)
"So long as they do not provide cruel and
unusual punishments, such as disgraced the
civilization of former ages and made one
shudder with horror to read of them — quar-
tering, burning, etc., the Constitution does
not put any limit upon the legislative discre-
tion."
State vs. White (Kans), 35 Pac. 33, cited
in Weems vs. U. S., supra.
"Is the punishment usual in the commu-
nity— seems to be "the test. The provision
goes to kind of punishment, not duration."
State vs. White, supra. Cited in Weems
vs. U. S., supra.
In the cases above cited, it will be observed
that the mere infliction of pain, or any act
calculated to cause physical suffering is not
the test. Independent of the inhibition
against cruelty, the provision also mentioned
the term "unusual."
It will be observed in the case of State vs.
Feilen, that the Constitution of the State of
Washington merely refers to the word
"cruel," and the decision was based upon that
ground.
I make the following suggestions of pain-
less acts which, yet, would undoubtedly come
within the terms of the constitutional inhibi-
250
Detailed Review of Litigation — Nevada
tion: Tattooing the brow; removal of an
eye under an anaesthetic.
Again, it is clear that the infliction of
capital punishment by means of hanging,
although possibly causing some pain to the
victim, yet is not unusual, and is not, accord-
ing to the authorities, within the prohibition.
However, to first chloroform the victim, and
then burn him, would unquestionably be con-
sidered so revolting that no court would hesi-
tate to pronounce it unconstitutional.
"The .punishment of offenses by stripes is
certainly odious, but cannot be said to be
unusual."
Commonwealth vs. Wyatt, 6 Rand (Va.),
694.
WOODBURN & BARTLETT, for Plaintiff.
GEO. B. THATCHER, Attorney-General
of Nevada, and
E. T. PATRICK, Assistant Attorney-Gen-
eral, for Defendants.
Defendant's List of Authorities on Constitu-
tionality of Punishment:
Mickle vs. Dickerson,
8 R. C. L., Section 268—
State vs. Feilen, 7 Wash., 65.
41 L. R. A. ns. 418.
136 Pac. 75.
Ann. Cas. 1914, B. 512, 515.
Dec. Dig. Criminal Law, Sec. 1313.
State, vs. Woodward.
30 L. R. A. ns 1004.
Davis vs. Berry, 216 Fed., 413.
Dutton vs. State, 91 Atl., 417.
Collins vs. Johnston, 35 S. C. R. 649.
Smith vs. Board, 88 Atl., 963.
Weems vs. U. S., 217 U. S., 349.
ADDITIONAL MEMORANDUM.
As to electrocution see
Storti vs. Commonwealth, 52 L. R. A. 520.
People ex rel Kemmler vs. Dorston,
119 N. Y., 569,
136 U. S., 436,
7 L. R. A., 715.
f. Decision of the United States District
Court.
IN THE DISTRICT COURT OF TilE
UNITED STATES, IN AND FOR
THE DISTRICT OF NEVADA.
PEARLEY C. MICKLE,
Plaintiff
vs.
RUFUS B. HENRICHS, as
Warden of the Nevada State TNo. A-59.
Prison, and DONALD T.
McLEAN, as Physician of the
Nevada State Prison,
Defendants
FARRINGTON, District Judge:
Mickle having pleaded guilty to the charge
of rape, was sentenced to be imprisoned in
the Nevada State Penitentiary for an inde-
terminate period of not less than five years.
It was also ordered as a part of the judgment
that an operation be performed on his person
sufficient to deprive him of the power of
procreation. This suit is brought against
the warden and the physician of the Nevada
State Prison to procure a decree of this
court restraining them from carrying the
order of the court into effect. All questions
as to jurisdiction have been expressly waived.
The operation directed is known as vasec-
tomy, and is authorized by Section 6393 of
the Revised Laws of Nevada, which reads
as follows:
"Whenever any person shall be adjudged
guilty of carnal abuse of a female person
under the age of ten years, or of rape, or
shall be adjudged to be an habitual criminal,
the court may, in addition to such other
punishment or confinement as may be
imposed, direct an operation to be performed
upon such person, for the prevention of pro-
creation; provided, the operation so directed
to be performed sKall not consist of castra-
tion."
Plaintiff claims that the statute violates
Section 6 of Article I of the Constitution of
Nevada, "in that the punishment therein
permitted and authorized is cruel and un-
usual."
The section referred to is as follows:
"Excessive bail shall not be required, nor
excessive fines imposed, nor shall cruel or
unusual punishments be inflicted."
llnder this provision, if the punishment is
cither cruel or unusual, it is prohibited.
It was agreed by counsel that the operation
could be performed in such a manner as to
be painless, and such was the effect of the
testimony. The operation, under a local
anaesthetic, occupies but a few minutes. The
person operated on may at once thereafter
resume his ordinary avocation and physical
activities, without serious discomfort. The
power to beget offspring is taken away, with-
out impairing the desire and capacity for
sexual enjoyment.
Detailed Review op L,itigation — Nevada
251
It appears from the record that Mickle is
an epileptic. That fact was accorded consid-
erable weight by the court in pronouncing
judgment.
Possibly in the exercise of its police power,
it may be lawful for the legislature to adopt
reasonable measures, adequate and sufficient
to prevent degenerates and persons afflicted
with transmittable mental defects, physical
disease, or criminal tendencies from beget-
ting children, but legislation of that character
must operate alike on all unfortunates of the
same class, and the classification must
operate reasonably with relation to the end
sought to be accomplished.
The courts of New Jersey recently refused
to uphold a state statute providing for the
sterilization of certain feeble-minded, epi-
leptic and criminal defectives confined in
penal and charitable institutions of that State.
Much stress was laid on the fact that an
epileptic confined in a penal institution is less
likely to transmit his infirmity to children
than an epileptic who is not so confined. It
was pointed out by the court that the statute
creates two classes, viz: those who are, and
those who are not, unfortunate enough to be
the inmates of such institutions, and it applies
its remedy to the former class only; that the
classification has no relation whatever to the
eradication of epilepsy; it is purely arbitrary
and artificial, and denies to those least able
to protect themselves, equal protection of
the law.
Smith vs. Bd. of Exmrs. of Feeble-Minded,
•«8 Atl. 963.
If the purpose of the Nevada statute be to
prevent the transmission of criminal tenden-
cies, it must be noted that it does not apply
to all convicted ofifenders, not even to all
who are habitual criminals, or to all persons
adjudged guilty of rape or carnal abuse of
female children; but only to such habitual
criminals and persons guilty of rape, as the
court in the exercise of a discretion, which
is in no wise directed by the statute, may
designate.
It is a notorious fact that many judges do
not regard mutilation as a wise or lawful
method of punishment. It is only those of
the contrary opinion who will prescribe
vasectomy as a part of the punishment for
this oilense.
Again, it is doubtful whether our penal
institutions contain more than a small
minority of those undesirables who are in-
clined to lawlessness and crime. It is easy
to imagine that a brute guilty of rape, or who
has a tendency to commit such a crime, might
regard it rather to advantage than otherwise,
to be sterilized. As a prevention of this
crime vasectomy is without effect. Once
free, the convict who has been so punished,
is still physically capable of committing the
offense.
These considerations, however, are beside
the issue. There is no attempt by defend-
ants to support the judgment on the ground
that vasectomy is calculated to promote
general welfare. It is conceded that cruel
and unusual punishments are prohibited, re-
gardless of any and all theories of race
culture.
Whether the operation performed as pun-
ishment is violative of the constitutional
injunction against cruel and unusual punish-
ment, is the question. This provision in
slightly varying form is to be found in the
Federal Constitution, and in all but three of
the State Constitutions. In Washington the
inhibition is against "cruel punishment;" in
the Federal Constitution it is against "cruel
and unusual punishment;" in Nevada it is
against "cruel or unusual punishment;" and
in Massachusetts it is directed expressly to
the judiciary: "No magistrate or court of
law shall * * * inflict cruel or unusual pun-
ishment."
The Federal courts have never attempted
a precise definition of either "cruel" or "un-
usual," as used in the Constitution. The
prohibition first appeared in the English Bill
of Rights of 1688, and was there directed to
modes of punishment which to the modern
mind seem barbarous and inhuman, such as
the pillory, the thumb-screw, the rack, dis-
emboweling the living victims, drawing,
quartering, burning and boiling.
The decisions are not altogether harmoni-
ous. Some hold that as used in the earlier
Constitutions, including that of the United
States, the' restriction applies only to those
ancient punishments which seem so shock-
ing in this more enlightened age.
Whitten vs. State, 47 Ga. 297, 301.
Judge Storey intimates that such limita-
tions on the power to punish are unnecessary
because resort to atrocious punishment is
hardly possible by the government of a free
people. In support of this view attention is
called to the fact that even before the Revo-
lutionary War the modes of punishment
mentioned had been practically discarded,
not only in the Colonies, but in England;
and as originally drafted and adopted, the
Federal Constitution contained no such re-
252
Detaii,Ed Revie;w of Litigation — Nevada
^trictions. It was only in response to a
strong popular demand that it became a part
of the organic law of the nation as the
Eighth Amendment. It is unreasonable to
believe that it was adopted solely as a shield
against obsolete abuses.
In other and more recent cases there are
strong expressions as to the effect that
imprisonment, though not in itself cruel or
unusual, may become so if the term of con-
finement is grossly disproportionate to the
offense.
McDonald vs. Commonwealth, 173 Mass.
323.
Weems vs. United States, 317 U. S. 349.
In the latter case the Supreme Court of
the United States seems to have committed
itself to the more humane and liberal doctrine
that the English Amendment is a regulation
of sufficient vitality and adaptability to re-
strain cruel innovations in the way of punish-
ment.
The Nevada Constitution was not adopted
until 1864, a comparatively recent date.
Neither then nor at any other time within
the history of the State prior to the date
of the act in question, had mutilation of the
person been a recognized mode of punish-
ment.
It is to be noted that the Nevada Constitu-
tion forbids punishments either "cruel or
unusual." The terms are used disjunctively.
If accorded their usual significance, it is evi-
dent that the purpose was to forbid newly
devised as well as cruel punishments.
In Cooley on Constitutional Limitations
(6 ed.) p. 403, it is said that
"Those degrading punishments which in
any State had become obsolete before its
existing Constitution was adopted, we think
may well be held forbidden by it as cruel and
unusual. We may well doubt the right to
establish the whipping post and the pillory in
states where they were never recognized as
instruments of punishment, or in states
whose Constitutions, revised since public
opinion had banished them, have forbidden
cruel and unusual punishment. In such
states the public sentiment must be regarded
as having condemned them as 'cruel,' and
any punishment which, if ever employed at
all, has become altogether obsolete, must
certainly be looked upon as 'unusual.' "
In Hobbs vs. State, 18 L. R. A., 774, 777,
the court says that "unusual" as used in the
Constitution, means a class of punishments
which never existed in the State, or that
class which public sentiment must be re-
garded as having condemned.
It may be said as questioning the accuracy
of this definition that the courts have re-
peatedly upheld statutes authorizing electro-
cution, but in those cases death was the
punishment; electrocution was merely the
means adopted to reach that end as swiftly
and as painlessly as possible.
Stroti vs. Commonwealth, 52 L. R. A. 520.
In State vs. Feilen, 126 Pac. 75, the Su-
preme Court of Washington came to the
conclusion that a statute authorizing vasec-
tomy was not unconstitutional. This deci-
sion was rendered under a Constitution
which prohibited cruel punishment only. In
this it differs from the Nevada Constitution,
which prohibits cruel and unusual punish-
ment.
I am not inclined to adopt the view that
the two provisions mean substantially the
same thing.
The same question came up in the case of
Davis vs. Berry, 216 Fed. 413. There Judges
Smith, Pollock and Smith McPherson had
under consideration an Iowa statute direct-
ing the operation of vasectomy to be per-
formed upon convicts in the state prison who
had been twice convicted of a felony. After
going into the history of similar punishments,
the court says:
"When Blackstone wrote his Commenta-
ries he did not mention castration as one of
the cruel punishments, quite likely for the
reason that with the advance of civilization
the operation viras looked upon as too cruel,
and was no longer performed. But each
operation is to destroy the power of pro-
creation. It is, of course, to follow the man
during the balance of his life. The physical
suffering may not be so great, but that is
not the only test of cruel punishment; the
humiliation, the degradation, the mental suf-
fering are always present and known by all
the public, and will follow him wheresoever
he may go. This belongs to the Dark Ages.
* * * Our conclusion is that the infliction of
this penalty is 'in violation of the Constitu-
tion, which provides that cruel and unusual
punishment shall not be inflicted."
Vasectomy in itself is not cruel; it is to be
classed with branding, the amputation of a
finger, the slitting of a tongue, or the cutting
off of an ear; when resorted to as a punish-
ment, it is ignominious and degrading, and
in that sense it is cruel. Certainly it would
be unusual in Nevada.
Dutaii,Ud Review oP Litigation — Nevada
253
It may well be that it came to the minds
of the men gathered in the Constitutional
Convention of this State that there could be
unwise punishment without the infliction of
physical pain; that legislators under the
stress of unusual conditions and peculiarly
atrocious crime, might hastily adopt strange
methods of repression, unknown to our crim-
inal practice and harmful to the State.
Reformation of the criminal is a wise and
humane purpose of punishment, to be disre-
garded only when the death penalty is
inflicted. It needs no argument to establish
the proposition that degrading and humiliat-
ing punishment is not conducive to the re-
sumption of upright and self-respecting life.
When the penalty is paid, when the offender
is free to resume his place in society, he
should not be handicapped by the conscious-
ness that he bears on his person, and will
carry to his grave, a mutilation which, as
punishment, is a brand of infamy. True,
rape is an infamous crime; the punishment
should be severe; but even for such an
offender the way to an upright life, if life
is spared, should not be unnecessarily ob-
structed. It will not do to argue that
inasmuch as the death penalty may be
inflicted for this crime, vasectomy, or any
other similar mutilation of the .body, cannot
be regarded as cruel, because the greater
includes the less. The fact that the extreme
penalty is not exacted is evidence that the
criminal is considered worthy to live, and to
attempt reformation. For him, and for
society, a fair opportunity to retrieve his fall
is quite as important as the eugenic possi-
bilities of vasectomy.
A decree will be entered in favor of the
plaintiff, restraining the warden and the
physician of the Nevada State Prison from
performing the proposed operation of vasec-
tomy on the person of the plaintiff.
CHAPTER VII. (Continued).
PART VII. INDIANA.
1. Circuit Court of Clark Covfnty.
a. Petition of Plaintiff 256
b. Consent of Next Friend 257
c. Demurrer Filed by Defendants 257
d. Demurrer Overruled and Excepted 257
e. Judgment 257
f. Notice of Appeal 258
g. Praecipe for Transcript 258
2. State Supreme Court.
a. Appellant's Brief 258
b. Appellee's Brief 264
c. Judgment 269
Detailed Review of Litigation — Indiana
255
(VII.) INDIANA.
In Indiana legalized sterilization began
in 1907 by the enactment of Chapter 215 of
the Acts of 1907. For a number of years
previously (since 1899), Dr. H. C. Sharp,
physician of the Reformatory at Jefferson-
ville, had practiced vasectomy under the
general laws governing surgical practice in
the state. His motives were purely eugen-
ical. Thus the so-called vasectomy act had
for its purpose the legalization and regula-
tion of the specific type of surgical operation,
which has for its purpose motives not indi-
cated by pathological conditions.
With the administration of Governor
Thomas R. Marshall, who was opposed to
the practice, the statute fell into disuse and
remained a dead letter until the administra-
tion of Governor James P. Goodrich, who
asked the institutions of the state to avail
themselves of the provisions of the so-called
vasectomy act. The Reformatory at Jeffer-
sonville appointed a Sterilization Board, but
the (the following quotation from a letter
by Dr. A. H. Estabrook of April 39, 1921)
"institutional officials, especially the physi-
cians involved, were more or less fearful
because of the seeming unconstitutionality
of the act, and so were rather afraid to go
ahead merely on the Governor's wish, so he
took some money from his contingent fund,
secured a very good lawyer from Jeflerson-
ville as counsel for plaintiff, instructing the
lawyer to test the constitutionality of the
act on every possible ground of there being
any errors in the same. The lawyer selected
was Wilmer T. Fox, a high type man of
good intellectual and social traits."
"Warren Wallace Smith, the subject in this
case, was selected as the plaintiff in the case,
because he had been convicted of incest and
sent to the Reformatory, coming under the
classification of rapist in the act."
"It was explained to Smith that he was
chosen for the case, that the act of steriliza-
tion was not going to be carried out, that
this was to be a test case and he agreed to
the proposition. It was found that he was
under the age of twenty-one, so Lincoln E.
Lankford, as his next friend, was chosen to
act in the case. In view of the fact that this
test case is a friendly case, and there was to
be no argument about the facts, I feel that
you will not need any particular data con-
cerning Smith's career in the Reformatory.
However, Smith is probably a high grade
imbecile, coming from a more or less de-
generate family in Wayne County, was sent
to the Reformatory as stated above, for incest
on his half-sister, from Wayne County,
February 13, 1919, for two to twenty-one
years, received at the Reformatory the same
day. He had been arrested previously for
petit larceny, by occupation a laborer, edu-
cation second grade. At the present time he
is working at outside work in the Reforma-
tory at unskilled tasks. I question whether
he has any comprehension that he is a sub-
ject of an interesting legal case, as he is
mentally too incapable of understanding any-
thing of that sort."
"Mr. Fox saw Smith and filed the case as
requested by the Governor, in his complaint
covering every legal possibility for error in
the act, being based more or less primarily
upon the plea that the plaintiff had not had
his day in court before an impartial body of
men and that the operation would be cruel
and inhuman treatment."
"I had a long discussion with Mr. Fox
concerning the act and his general views on
the sterilization problem; who said that un-
questionably the law of Indiana was faulty
in several respects, that it did not state the
law was on eugenic grounds, that it did not
give the person concerned a hearing before
an impartial board, that only selected groups
were taken and not all the groups that are
more or less anti-social in nature, and that
certain classes only of criminals are included
and not all classes of criminals that should
be eliminated from society on general
grounds. * * * He stressed the point that the
medical profession is not yet agreed on
diagnoses in the mental field and also they
do not agree on the effects of sterilization,
and implied that the judiciary must protect
the people until such an agreement takes
place.''
"The attitude of several of the constitu-
tional lawyers seems to be that the Indiana
law creates increased punishment with no
court action, which is contrary to the Consti-
tution of the State.''
Honorable Wilmer T. Fox, attorney for
Smith, in a letter to the author (February
12, 1921), says:
"The injunction suit was filed primarily
for the purpose of testing the statute. The
members of the Board of Trustees of the
Indiana Reformatory seriously doubted
whether the statute, in the form in which it
had been enacted in Indiana, was constitu-
tional and they did not care to take the re-
256
Detaii^ed Review of Litigation — Indiana
sponsibility either for enforcing or not
enforcing it until the courts had passed on
the question. The first time that they had
a typical case up they arranged for the in-
mate to bring an injunction suit to test the
validity of the act."
Dr. A. H. Estabrook, in a letter of August
9, 1921, to Mr. A. W. Butler, Secretary of
the Indiana State Board of Charities and
Corrections, says:
"In view of the preamble of Chapter 215,
Acts 1907, the Sterilization Act, which says,
whereas, 'Heredity plays a most important
part in the transmission of crime, idiocy and
imbecility,' it would seem that Warren Wal-
lace Smith, Indiana Reformatory, No. 10734,
was not the best person to be chosen as a
test person for questioning the constitution-
ality of this act, as, on the basis of their data,
as exhibited in their letter of July 29, the
Reformatory officials had no information as
to the family history of this boy to indicate
whether or not he came from a men-
tally defective strain. The said Smith- is
feeble-minded as shown by his behavior at
the Reformatory, and the rapist or incest act
was one of chance because of the feeble-
mindedness rather than any rapist-criminal
behavior, deliberately carried out as a crim-
inal act other than that of a feeble-minded
person.
"Further, the half-sister with whom Warren
had sexual relations did not become preg-
nant by him as stated by Warren to the
Reformatory officials.
"It would seem, then, that the provisions
of a sterilization law, such as the Indiana
law, should have been carried out with due
reference to the present day methods of
eugenics; that is, with a complete family
history study before any authorization for
sterilization be made."
George A. H. Shideler, Superintendent of
the Reformatory, stated that Smith was
chosen: "First; because he had incestuous
relations with his half-sister, Smith stating
that she was pregnant; second, that his be-
havior at the Reformatory showed that he
was feeble-minded, in that he did not have
any conception of the rules of the institu-
tion, and further that he did not recognize
the wrongfulness of his act."
1. December 4, 1919. Judge James W.
Fortune of the Circuit Court of Clark County
granted a permanent injunction against
Charles F. Williams, as Chief Physician of
the Indiana Reformatory, and various mem-
bers of the Board of Managers of said insti-
tution, against the performance of the oper-
ation of vasectomy or any other operation
for sterilization of the plaintiff, Warren Wal-
lace Smith, an inmate of the Reformatory
at Jeflfersonville. The injunction was directed
against the members of the Board of Man-
agers of said Reformatory — the ground for
the decision being that the statute (Chap.
215 of the Acts of 1907) is unconstitutional
because it denies to the persons subject to it
the right to free administration of justice in
open court.
1. CIRCUIT COURT OF CLARK
COUNTY.
The principal documents in the case follow:
a. Petition of the Plaintiff, September 25,
1919:
STATE OF INDIANA,
COUNTY OF CLARK, ss:
In the Clark Circuit Court
September Term, 1919.
WARREN WALLACE
SMITH, by LINCOLN E.
LANKFORD, his next
friend,
vs.
CHARLES F. WILLIAMS,
as Chief Physician of the
Indiana Reformatory, and
Joseph E. Hennings, Alvin
Padgett, John H. Weathers
and Thomas A. Dailey, as
Members of the Board of
Managers of the Indiana
Reformatory.
(Here follows appellant's brief, page 3,
"The plaintiff " through to page 6,
"WILMER T. FOX, Attorney for Plain-
tiff." Sec. p. 259 of this book.)
Attached to this complaint is the
"TERM TIME SUMMONS."
STATE OF INDIANA,
CLARK COUNTY, ss:
The State of Indiana to the Sheriff of
Clark County, Greeting:
You are hereby commanded to summon
Charles F. Williams, as Chief Physician of
the Indiana Reformatory, and Joseph E.
Hennings, Alvin Padgett, John H. Weathers
and Thomas A. Dailey, as members of the
Board of Managers of the Indiana Reform-
atory, to appear in the Clark Circuit Court
before the jud^e thereof on the 9th day of
No. 12018
" Complaint
DETAILED Review of Litigation — Indiana
257
October, 1919, the same being the
judicial day of the September term of said
court, at the Court House, in Jeffersonville,
in said County, to answer the complaint of
Warren Wallace Smith by Lincoln E. Lank-
ford, his next friend.
Witness the Clerk of said Court, and the
seal thereof hereunto affixed at Jeffersonville,
Indiana, the 25th day of September, 1919.
ERNEST E. JACOBS,
Clerk.
Certificate to Term Time Summons in the
following statement:
"I certify that I have served this summons
on the 29th day of September, 1919, by read-
ing the same to Charles F. Williams.
"The other within named witnesses not
found in my bailiwick.
"JOHN H. DILLINGER."
Stamped on back of complaint is: Filed
in open court September 25, 1919.
ERNEST E. JACOBS.
Also referring to complaint:
"Plaintiff fixes the 9th day of October,
1919, as the day defendant shall appear in
this action and requests that summons be
issued to the Sheriff of Clark County,
Indiana.
WILMER T. FOX.
Attorney for Plaintiff.
b. Consent of Next Friend:
STATE OF INDIANA,
COUNTY OF CLARK, ss:
In the Clark Circuit Court,
September Term, 1919.
WARREN WALLACE
SMITH, by LINCOLN E.
LANKFORD, his next
friend.
No. 12018
. Consent of
Next Friend.
CHARLES F. WILLIAMS,
as Chief Physician of the
Indiana Reformatory, et al.
The undersigned hereby consents to act
as next friend in the above entitled cause for
said Wlarren Wallace Smith, an infant under
the age of twenty-one years.
LINCOLN E. LANKFORD.
Dated September 24, 1919.
c. Demurrer filed by Defendants:
STATE OF INDIANA,
COUNTY OF CLARK, ss:
In Clark Circuit Court,
September Term, 1919.
WARREN WALLACE^
SMITH, by LINCOLN E.
LANKFORD, his next friend,
vs. [ No. 12018.
CHARLES F. WILLIAMS, as
Chief Physician of the Indiana
Reformatory, et al. .
"The defendants, and each of them, in the
above entitled cause demur to plaintiff's com-
plaint therein, and for grounds of demurrer
say that said complaint does not state facts
sufficient to constitute a cause of action
against them or any of them."
ELE STANSBURY,
Attorney-General.
Defendant's Attorney.
EDWARD M. WHITE,
Of Counsel.
Following the demurrer, on next page, is
"Memorandum" found in plaintiff's brief,
page 7, "Defendants say " through to
page 8, "submitting to it.'' (See p. 260 of
this book.)
Respectfully submitted,
ELE STANSBURY,
Attorney-General.
EDWARD M. WHITE,
Of Counsel.
d. Demurrer overruled and excepted:
Appellant's demurrer was overruled by the
court and to such ruling appellants at the
time excepted. (Tr. p. 10, 1.1 to 1.9.)
Thereupon the court ruled and ordered
that appellant should plead over to appellee's
complaint. Appellants then refused to plead
further, but elected to stand upon their de-
murrer. (Tr. p. 10, 1.21 to 1.28.)
e. Judgment :
"In default of answer and upon appellants'
refusal to plead further, the court on De-
cember 4, 1919, found for appellee upon his
complaint, and adjudged and decreed that
the appellants be and they were enjoined
from performing or causing to be performed
the operation of vasectomy or any other
operation for appellee's sterilization and that
the appellants pay the cost of such action.
(Tr. p. 11, 1.1. to 1.13.)"
258
Detailed Review of Litigation — Indiana
f. Notice of Appeal:
Notice of appeal was then given and
service acknowledged by appellee as follows ;
"To Warren Wallace Smith, Appellee, and
Wilmer T. Fox, his Attorney, and Ernest E.
Jacobs, Clerk of Clark Circuit Court.
"You are hereby notified that appellants, in
the above entitled cause hereby appeal to the
Supreme Court from the judgment rendered
in your favor against them, namely, Charles
F. Williams, as Chief Physician of the
Indiana Reformatory, Joseph E. Hennings,
Alvin Padgett, John H. Weathers and
Thomas A. Dailey as members of the Board
of Managers of the Indiana Reformatory on
the day of December, 1919, by the
Clark Circuit Court in the cause numbered
12018, entitled Warren Wallace Smith by
Lincoln E. Lankford, his next friend, vs.
Charles F. Williams, et al.
"Dated, this 12th day of January, 1920.
"ELE STANSBURY,
"Attorney- General.
"EDWARD M. WHITE,
"Deputy Attorney- General.
"Attorneys for Appellants.
"On behalf of the appellee, Warren Wal-
lace Smith, by Lincoln E. Lankford, his next
friend, I hereby acknowledge service of the
above and foregoing notice this 12th day of
January, 1920.
"WILMER T. FOX,
"Attorney for Appellee.
"I acknowledge service of above notice this
12th day of January, 1920.
"ERNST E. JACOBS,
"Clerk of Clark Circuit Court."
g. Praecipe for Transcript:
Appellants then filed with the Clerk of the
Clark Circuit Court their praecipe for tran-
script to be used on appeal to the Supreme
Court (Tr. p. 12) which praecipe is as
follows ;
"To Ernest E. Jacobs, Clerk of Clark Cir-
cuit Court: The defendants in the above
entitled cause request you to prepare and
properly certify, for use on appeal to the
Supreme Court of Indiana, a full, true and
complete transcript of the proceedings,
papers on file, and judgment in the above
entitled cause."
2. STATE SUPREME COURT.
May 11, 1921. The Associate Judge of
the Supreme Court, Hon. Howard L. Town-
send, in an opinion and judgment of the State
Supreme Court, confirmed the judgment of
the Trial Court, enjoining the institution
from performing or causing to be performed
the operation of sterilization of any type
upon Warren Wallace Smith, the defendant.
The statute was held to be a plain violation
of the Fourteenth Amendment to the Fed-
eral Constitution, in that it denied due
process of law. The statute thus becomes
void and unenforceable.
The principal documents and records in
the case follow: •
a. Appellant's Brief:
IN THE
SUPREME COURT OF INDIANA.
Appeal from the Clark Circuit Court.
CHARLES F. WILLIAMS,
as Chief Physician of the
Indiana Reformatory, and Jo-
seph E. Hennings, Alvin
Padgett, John H. Weathers
and Thomas A. Dailey, as
members of the Board of
Managers of the Indiana y jjo. 23709.
Reformatory,
Appellants,
vs.
WARREN WALLACE
SMITH, by LINCOLN E.
LANKFORD, his next friend,
Appellee.
APPELLANT'S BRIEF.
NATURE OF THE ACTION.
This is a suit to enjoin appellants from
performing an operation known as vasec-
tomy upon appellee, who is a prisoner in the
Indiana Reformatory, for the purpose of
sterilizing him, under and pursuant to the
provisions of the Act of 1907 (Acts 1907,
p. 377).
II.
THE ISSUES.
Appellee filed his complaint in the Clark
Circuit Court to enjoin appellants as officers
of the Indiana Reformatory from sterilizing
appellee. Appellants appeared to the action
and demurred to the complaint upon the
ground that it did not state facts sufficient
to constitute a cause of action against them.
Detahhd Review of Litigation — Indiana
259
III.
HOW THE ISSUES WERE DECIDED,
AND JUDGMENT.
The demurrer of appellants to appellee's
complaint was submitted to the court and
tfte; court overruled the same to which ruling
appellants at the time excepted (Tr. p. 10)
and the court ordered appellants to plead
over.' Appellants refused to plead further
and elected to stand upon their demurrer.
The court then, for want of answer, found
for appellee, that the act of 1907, p. 377, was
unconstitutional and ordered, adjudged and
decreed that' the defendants be enjoined
from performing or causing to be performed
the'.joperation of vasectomy or any other
operation for the sterilization of appellee and
efttergd ., ju^gipent against appellants for
cost|.|,^(^XE.;p. 10, 1.17, to p. 11, 1.13.)
■:., r-A . .. ..y.. :.. IV.
ERRORS-RELIED on for REVERSAL.
The error assigned and relied on for re-
versal is:' ..
That the trial court erred in overruling
apptellalits' demurrer to appellee's complaint.
(Tr. p. 14, 11.1 to 25.)
V.
STATEMENT OF THE RECORD.
The sole question here for determination
is as to the legal sufficiency of appellee's
complaint. The complaint, omitting its
formal parts, is as follows :
"The plaintiff in the above entitled cause
complains of the defendants in said cause
and says that said Charles F. Williams is
now, and was at all the times hereinafter
mentioned, the duly qualified and acting
Chief Physician of the Indiana Reformatory,
and that the defendants, Joseph E. Hennings,
Alvin Padgett, John H. Weathers and
Thomas D. Dailey, are now, and were at all
times hereinafter mentioned, the duly quali-
fied and acting members of the Board of
Managers of said Indiana Reformatory.
"Plaintiff further says that he is now, and
has been at all times mentioned herein, a
citizen of the United States and of the State
of Indiana, and that he is now, and has been
at all times mentioned herein, an inmate of
said Indiana Reformatory serving therein a
sentence for the crime of incest.
"Plaintiff further says that on the day
of August, 1919, Charles F. Williams, as
Chief Physician of said Indiana Reformatory,
and said Joseph E. Hennings, Alvin Padgett,
John H. Weathers and Thomas A. Dailey,
acting as said Board of Managers of the
Indiana Reformatory, recommended that
this plaintiff be examined as to his mental
and physical condition; that thereafter, on
the ■ day of September, 1919, pursuant
to said recommendation, this plaintiff was
examined by said Charles F. Williams, insti-
tutional physician of said Indiana Reform-
atory, and by two surgeons whose names
this plaintiff does not know. That there-
after said committee of physicians and sur-
geons and said Board of Managers entered
and ordered finding that the physical and
mental condition of this plaintiff was such
that, in their judgment, procreation was in-
advisable, and that there was no probability
of the improvement of the mental condition
of this plaintiff. That thereupon said Board
of Managers ordered and directed said
Charles F. Williams, as Chief Physician of
said Indiana Reformatory, to perform on
this pjaintiff the operation known as vasec-
tomy, for the prevention of procreation on
the part of this plaintiff, and that said Charles
F. Williarris, as such physician,, and said
Board of Managers, will proceed to carry
into execution the finding and order afore-
said, thereby causing the plaintiff great and
irreparable injury, unless restrained and
enjoined.
"Plaintiff further says that he has not been
given a public trial by an impartial jury as to
his mental and physical condition or as to
the necessity of said operation, nor has art^'
provision been made by said defendants, or
by any other persons or tribunal, for plain-
tiff to be heard on such questions, in person
and by counsel, nor has plaintiff been fur-
nished the accusation against him, given
the opportunity to meet the witnesses against
him, or compulsory process for obtaining
witnesses in his favor, but that said finding
and order have been entered pursuant to, in
the manner provided by, and in reliance upon
the provisions of Chapter 215 of the Acts of
the Sixty-fifth Regular Session of the Gen-
eral Assembly of the State of Indiana, being
Acts of 1907, pages 377 and 378, and without
further authority or warrant. That the oper-
ation ordered as aforesaid, if performed, will
sterilize this plaintiff and forever deprive
him of the power to enter into the marriage
relation, and will degrade and humiliate
plaintiff.
"Plaintiff further says that th6 finding and
order aforesaid are illegal and void, and that
said Act of 1907 is unconstitutional and void,
in this:
260
Detailed Review oE Litigation — Indiana
"a) That said finding, order and Act of
1907 deny to this plaintiff the free adminis-
tration of justice, in open court, guaranteed
to him by Section Twelve of Article One of
the Constitution of the State of Indiana.
"(b) That said finding, order and Act of
1907 deny to this plaintiff the right to a
public trial by an impartial jury, the right to
be heard by himself and counsel, the right to
demand the nature and cause of the accusa-
tion against him and to have a copy thereof,
the right to meet the witness face to face,
and the right to have compulsory process for
obtaining witnesses in his favor guaranteed
to him by Section Thirteen of Article One
of the Constitution of the State of Indiana.
"(c) That said finding, order and Act of
1907 deprive this plaintiff of life, liberty and
property without due process of law, con-
trary to Section One of Article Fourteen of
the Constitution of the United States of
America, commonly known as the Four-
teenth Amendment to said Constitution.
"(d) That said finding, order and Act of
1907 provide for the infliction on this plain-
tiff of cruel and unusual punishment contrary
to Section Sixteen of Article One of the
Constitution of the State of Indiana.
"(e) That said Act of 1907 is a Bill of
Attainder and that said finding, order and
Act are contrary to Section Ten of Article
One of the Constitution of the United States
of America.
"(f) That said Act of 1907 embraces
more than one subject and embraces matters
not expressed in the title, contrary to Section
Nineteen of Article Four of the Constitution
of the State of Indiana.
"WHEREFORE, plaintiff asks that said
defendants, and each of them, be enjoined
from carrying into execution the finding and
order aforesaid, be enjoined from perform-
ing or causing to be performed the operation
of vasectomy or any other operation for the
sterilization of this plaintiff, and that said
Act of 1907 be declared unconstitutional and
void, and all other proper relief.
"WILMER T. FOX,
"Attorney for Plaintiff."
(See p. 355 of this book.)
In support of their demurrer, appellants
filed the following memorandum, to-wit:
"Defendants say that the above demurrer
to plaintiff's' complaint should be sustained
for the following reasons:
"1. The Act of 1907 (Acts 1907, p. 37)
under which defendants propose to perform
the operation known as vasectomy upon
plaintiff as alleged in the complaint is a valid
enactment and is not violative of either the
Federal or State Constitutions.
"(a) The plantiff has had his day in court.
Due process of law was accorded to him and
he was convicted of the crime of incest,
which carries with it, under the provisions
of the Act of 1907, the. right of the defend-
ants to cause him to be examined and if it
be found that there is no probability of im-
provement of his mental condition, and that
it is inadvisable for him to procreate, to
operate upon him and sterilize him; and the
complaint shows that all steps have been
properly taken by defendants looking to that
result.
"(b) Plaintiff has not been deprived of
the equal protection of the laws. He belongs
to a class of confined criminals who are
equally protected and the basis of the classi-
fication is a reasonable one.
"(c) Plaintiff can not be heard to assert
that because the act in question applies also
to 'idiots, rapists and imbeciles' who are not
convicted criminals and does not apply to
idiots and imbeciles not confined, that such
confined idiots and imbeciles are deprived of
the equal protection of the laws, for plaintiff
by his averments is not an idiot or an imbe-
cile. He can not attack the constitutionality
of the act as it applies to them.
"(d) The Act of 1907 complained of in
plaintiff's complaint does not provide cruel
or unusual punishment such as is prohibited
by Section 16 of Article I of the Indiana
Constitution. The operation is practically
painless and is completed in a few minutes,
without effect except to prevent procreation.
"(e) It is within the police power of the
State to provide, as it has in the Act of 1907,
for the sterilization of persons where society
will be benefited by such a course; and a
person thus sterilized is not deprived of any
right which he may not legally be deprived
of in the interest of society.
"(f) The Act of 1907 is not a Bill of
Attainder, for it does not inflict punishment
without a judicial trial. Plaintiff had a jury
trial or could have had one if he desired, to
determine whether he was guilty of incest,
and, therefore, to be placed in confinement
where he was subject to be operated upon.
"(g) The operation of vasectomy is
neither a punishment or an injury to one
submitting to it."
DBTAIIvED RjiVlUW OF IvlTlGATlON — INDIANA
261
(Here follow Appellants' Demurrer, Judg-
ment, Notice of Appeal, and Praecipe for
Transcript. See p. 357 of this book.)
TRANSCRIPT MADE AND FILED.
Pursuant to appellants' praecipe therefor,
the clerk made a transcript of the record and
appended his certificate thereto.
This transcript of the record with appel-
lants' assignment of error made thereon was
duly filed in this court on January 13th, 1930.
POINTS AND AUTHORITIES.
I.
(Error in overruling Appellants' Demurrer.)
(A) It is not cruel or unusual punishment
for appellants to sterilize appellee by means
of the operation known as vasectomy.
State vs. Feilen, 70 Wash. 65 (41 L. R. A.
(N. S.) 418).
(B) Punishments are cruel only when
they involve torture, or a lingering death,
and it is held th'e punishment of death is not
cruel within the meaning of the Constitution
prohibiting cruel or unusual punishments.
Rice vs. State, 7 Ind. 332;
Hobbs vs. State, 133 Ind. 404, 408;
Re Kermuler, 136 U. S. 436.
(C) The constitutional provisions pro-
hibiting cruel or unusual punishments have
special reference to barbarities such as draw-
ing, quartering, burning, etc., permitted
under the old law of felony^
Hobbs vs. State, 133 Ind.'404, 408;
Robinson vs. Miner, 68 Mich. 549;
State vs. Williams, 77 Mo. 310;
Whitten vs. State, 47 Ga. 397.
(D) The Act of 1907 (Acts 1907, p. 377)
does not provide punishment at all.
II.
The act under which appellants propose
to sterilize appellee is as follows:
(Here follows the text of the Indiana Ster-
ilization Act. Chap. 315, 1907.)
(A) The above act is the first law enacted
on this subject. California and Connecticut
enacted similar laws in 1909 (California Stats.
1909, p. 1093), (Connecticut Acts 1909, Chap.
^209), and New Jersey and Iowa enacted
similar laws in 1911 (New Jersey Laws 1911,
Chap. 190), and (Iowa Laws 1911, Chap.
129).
(B) The Washington statute diflfers from
the Indiana statute somewhat. It is as
follows :
"Whenever any person shall be adjudged
guilty of carnal abuse of a female person
under the age of ten years, or of rape, or
shall be adjudged to be an habitual criminal,
the court may, in addition to such other
punishment or confinement as may be im-
posed, direct an operation to be performed
upon such person for the prevention of pro-
creation."
(C) The constitutionality of the Wash-
ington, New Jersey and Iowa acts have been
attacked in the courts in the following three
cases and these are the only adjudications
on this subject ever made anywhere in the
world, so far as I have been able to ascer-
tain. I refer to the cases of:
State vs. Feilen, 70 Wash. 65 (41 L. R. S.
(N. S.) 418;
Davis vs. Berry, 216 Fed. Rep. 413; (Iowa
Statute) appealed to U. S. Supreme Court
(343 U. S. 468);
Smith vs. Board, etc., 88 Atl. 963 (New
Jersey Act).
(D) The Washington statute was upheld,
the court holding that the operation of vasec-
tomy was not cruel or unusual and that the
act did not violate the Constitution of the
State or of the United States.
In deciding the case the court referred to
the Indiana law of 1907 and said:
"The sterilization of convicts by vasec-
tomy was actually performed for the first
time in this country, so far as is known, in
October, 1899, by Dr. H. C. Sharp, of Indian-
apolis, then physician to the Indiana State
Reformatory, at Jeffersonville, though the
value of the operation for healing purposes
had long been known. He continued to per-
form this operation with the consent of the
convict (not by legislative authority) for
some years. Influential physicians heard of
his work, and were so favorably impressed
with it that they indorsed the movement,
which resulted in the passage of the law now
upon the Indiana statute books. Dr. Sharp
has this to say of this method of relief to
society: 'Vasectomy consists of ligating
and resecting a small portion of the vas
deferens. This operation is, indeed, very
simple and easy to perform; I do it without
administering an anesthetic, either general
or local.
" 'It requires about three minutes' time to
perform the operation, and the subject re-
turns to his work immediately, suffers no
inconvenience, and is in no way impaired for
his pursuit of life, liberty, and happiness, but
is effectively sterilized.' "
(E) The New Jersey act provided for the
sterilization of idiots, feeble-minded persons,
epileptics and certain classes of criminals and
262
Detailed Review oe Litigation — Indiana
other defectives confined in the several re-
formatories, charitable and penal institutions
in the state and its counties. The defendant
in the action was an unfortunate woman who
had committed no offense but who was sub-
ject to epilepsy and was confined in an insti-
tution. The court held the act invalid as to
her because it deprived her of the equal pro-
tection of the laws. This was correct because
the act did not require epileptics not confined
in a state or county institution to be
sterilized.
Smith vs. Board, etc., 88 Atl. 963.
(F) The above case is not decisive in this
case because appellee does not belong to the
class to which Miss Smith belonged. He is
a convicted criminal and can not contend
that the Indiana act is unconstitutional as to
idiots, epileptics, etc., because it discriminates
against the confined ones, because he is not
of that class. He can only complain if as a
convicted criminal he is deprived of the equal
protection of the laws.
(G) The Iowa suit was decided in the
United States District Court of South Da-
kota, that court holding that the Iowa law
providing for the performance of the opera-
tion of vasectomy on criminals twice con-
victed of a felony is unconstitutional as
providing a cruel and unusual punishment
and as a deprivation of due process of law.
The court in deciding this case took the
mistaken notion that vasectomy like castra-
tion deprived the person of sexual desire,
which according to medical men is not true.
The court said: "There is a difiference
between the operation of castration and
vasectomy: castration being physically more
severe than the other. But vasectomy in its
results is much the coarser and more vulgar."
The district court enjoined the operation and
while the cause was taken to the United
States Supreme Court on a writ of error, no
decision was made in that court, owing to
the fact that the Iowa act had then been
repealed and the question had therefore
become a moot one.
Berry vs. Davis, 242 U. S. 468.
III.
Is the Indiana Act of 1907 violative of our
State or Federal Constitutions?
(A) The Indiana act does not provide
sterilization as a punishment for crime, but
in the exercise of the police power, it seeks
to remove the cause of crime. It has been
held that it is the duty of the State to pro-
mote and protect the peace arid good order
and happiness of the citizens by enacting
adequate laws to prevent practices that lead
to vice and crime.
Harper vs. Commonwealth, 93 Ky. 290.
(B) The right to procreate should be sub-
ject to the more important right of society
to prevent procreation by persons morally
and physically unfit.
(C) The Act of 1907 is based upon the
State's police power, and the subject of pre-
venting procreation is a proper and reason-
able subject for the exercise of such power
in the interest of the general welfare of the
people and the Constitution can only prevent
the exercise of such power when it is exer-
cised in an arbitrary or oppressive manner.
McLean vs. Arkansas, 311 U. S. 539.
(D) The right of freedom of contract is
held not to be unlimited in its nature and
when the right to contract or carry on busi-
ness conflicts with laws declaring the public
policy of the State, enacted for the protec-
tion of the public health, safety or welfare,
such laws may be valid notwithstanding they
have the effect to curtail or limit the freedom
of contract.
Holden vs. Hardy, 169 U. S. 366;
Knight & Jillson vs. Miller, 172 Ind. 27.
(E) While the police power of the State
is not unlimited, and is subject to judicial
review where the rights of the citizens are
unnecessarily and arbitrarily interfered with
or destroyed, still the legislature being
familiar with local conditions is primarily the
judge of the necessity of such enactments
and they will not be struck down because
the court may differ with the legislature in
its views of public policy.
Jacobson vs. Mass., 197 U. S. 11;
Mugler vs. Kansas, 123 U. S. 623.
(F) If the Act of 1907 has a reasonable
relation to the protection of the public health,
safety or welfare it should not be set aside.
(G) If liberty of contract which is pro-
tected against hostile state legislation is not
universal, but is subject to legislative restric-
tions in the exercise of the police power of
the State why should not the right to pro-
create be restricted by legislation in the
interest of public safety and the public
welfare.
McLean vs. Arkansas, 211 U. S. 539.
IV.
(A) Under the police power statutes
enacted to prevent the formation of combina-
tions to restrict trade are upheld, notwith-
Detaii<ed Review of Litigation — Indiana
263
standing the right to contract is guaranteed
by the Constitution.
Knight & Jillson vs. Miller, 172 Ind. 27.
(B) Under this power cities may regulate
the heighth of buildings notwithstanding the
private ownership of the property.
Welch vs. Swazey, 214 U. S. 91.
(C) Under the police power the opera-
tions of railroad trains may be controlled.
Southern Ry. Co. vs. King, 217 U. S. 524.
(D) Under this same power, our statute
providing for the elevation of railroad tracks
does not violate the Fourteenth Amendment.
Morris vs. Indianapolis, 177 Ind. 369, 394.
(E) A statute requiring railroad compa-
nies to destroy weeds and which does not
require other land owners to do so, is not
a denial of the equal protection of the laws.
Chicago, etc., R. R. Co. vs. Anderson, 182
Ind. 140, 143.
(F) The section of the Constitution pro-
hibiting the granting of special privileges or
immunities does not apply as against the
exercise of a purely police power for the
protection of the public.
Ayres vs. State, 178 Ind. 453, 457;
Chicago, etc., R. R. Co. vs. Anderson, 182
Ind. 140.
V.
It ts contended by appellee that by his
sterilization under the Act of 1907 he is de-
prived of a right he has to a public trial, to
demand the nature and cause of the accusa-
tion against him and have a copy thereof, to
be heard by himself and counsel, to meet the
witnesses face to face, and to have compul-
sory process for obtaining witnesses guaran-
teed to him by Section Thirteen of Article
One of the Indiana State Constitution.
The answer to all this is, that he is not
now accused of anything. That he was
accused in a public court with the crime of
incest, had a public trial, had his day in court,
had counsel, a chance to face the witnesses
and had compulsory process to procure his
witnesses, and he was convicted and, sen-
tenced to the reformatory.
He knew when accused of incest that if he
was convicted and sentenced he would
thereby be put in a class liable to be ex-
amined by the prison physicians and to be
sterilized by order of the trustees of the
prison and he must be said to have con-
templated such probabilities when he was
tried on a charge of incest. He has had his
day in court.
(A) Appellant must now submit to ster-
ilization not as a punishment for crime, for
imprisonment is his punishment, but in
obedience to the exercise of the State's police
power as declared by the General Assembly
of 1907, in the interest of the common welfare
and because by his conviction after a trial
at which he was deprived of no constitutional
■ right, he has placed himself in a class subject
to such operation.
(B) If the classification is a fair one and
to prevent procreation by him is reasonably
necessary for the general welfare, then hav-
ing been convicted of the crime of incest as
appellee has, and having been examined by
the officers of the Reformatory designated
to examine that class of convicts and by
them it is found that there is no hope of
improvement, in his mentality, he should not
be heard to assert that the act is unconstitu-
tional as to him, even though it might be so
as to epileptics confined in public institutions
because those not so confined are not re-
quired to be sterilized and hence those con-
fined might be held to be deprived of the
equal protection of the laws.
The appellee contends that the finding and
order for his sterilization and the Act of
1907 authorizing it, is unconstitutional and
void because:
"(a) That said finding, order and Act of
1907 deny to this plaintiff the free adminis-
tration of justice, in open court, guaranteed
to him by Section Twelve of Article One of
the Constitution of the State of Indiana.
"(b) That said finding, order and Act of
1907 deny to this plaintiff the right to a
public trial by an impartial jury, the right to
be heard by himself and counsel, the right
to demand the nature and cause of the accu-
sation against him and to have a copy
thereof, the right to meet the witnesses face
to face, and the right to have compulsory
process for obtaining witnesses in his favor
guaranteed to him by Section Thirteen o*
Article One of the Constitution of the State
of Indiana.
"(c) That said finding, order and Act of
1907 deprive this plaintiff of life, liberty and
property without due process of law, con-
trary to Section One of Article Fourteen of
the Constitution of the United States of
America, commonly known as the Four-
teenth Amendment to said Constitution.
"(d) That said finding, order and Act of
1907 provide for the infliction on this plain-
tiff of cruel and unusual punishment contrary
264
Detaii^Ed Review oe Litigation — Indiana
to Section Sixteen of Article One of the Con-
stitution of the State of Indiana.
"(e) That said Act of 1907 is a Bill of
Attainder and that said finding, order and
Act are contrary to Section Ten of Article
One of the Constitution of the United States
of America.
"(f) That said Act of 1907 embraces more
than one subject and embraces matters not
expressed in the title, contrary to Section
Nineteen of Article Four of the Constitution
of the State of Indiana."
(A) If the exercise of the State's police
power in the interest of the general welfare,
when not exercised oppressively or arbitra-
rily is independent of and not curbed by our
State Constitution as held by authorities cited
herein under Point 3, then the above con-
tention of appellee can not be sustained.
(B) To establish that the operation
known as vasectomy is not cruel or unusual.
See authorities cited by appellant under
Point 1 of this brief.
(C) Very clearly the title of the Act of
1907 (Acts 1907, p. 377) is sufficient upon
which to base the provisions of the act
authorizing the appointment of skilled sur-
geons in addition to the regular institutional
physician and the action to be taken by such
appointees in examining convicts and report-
ing the results of §uch examination to the
trustees of the Reformatory.
The title of said Act is as follows:
"An Act entitled an act to prevent pro-
creation of confirmed criminals, idiots, imbe-
ciles, and rapists; providing that superin-
tendents and boards of managers of institu-
tions where such persons are confined shall
have the authority and are empowered to
appoint a committee of experts, consisting oi
two (3) physicians, to examine into the
mental condition of such inmates.''
The general subject of the Act was to pre-
vent procreation and the matters connected
therewith consisted of the provisions for tho
appointment of persons to examine prisoners,
etc. This is a sufficient title.
State vs. Gerhardt, 145 Ind. 4.(9.
ARGUMENT.
Appellants submit that the Act of 1907,
here in question and claimed by appellee to
violate both the State and Federal Constitu-
tions, is a police measure in the interest of
the general welfare. That the subject of
procreation by persons convicted of incest or
rape is a proper subject for the exercise of
the State police power and that the General
Assembly, by the Act, has designated the
chief physician and his scientific assistants
and the trustees of penal institutions to carry
out the policy declared by it to be necessary
for the general welfare and safety of the
public and that the means employed to
accomplish the purposes of the Act are
neither arbitrary or oppressive. That the
operation, known as vasectomy, resulting' in
sterilization, is not cruel or unusual punish-
ment— is not punishment at all — and that
the trial court erred in holding such Act to be
unconstitutional, such judgment should be
reversed.
Respectfully submitted,
ELE STANSBURY,
Attorney-General.
EDWARD M. WHITE, '
Of Counsel.
b. Appellee's Brief:
NATURE OF THE ACTION.
The appellant's brief states correctly the
record and nature of the action. It was a
suit to enjoin appellants from performing
an operation known as vasectomy upon
appellee, who is a prisoner in the Indiana
Reformatory, for the purpose of sterilizing
him under and pursuant to the provisions of
the Act of 1907 (Acts 1907, p. 377).
THE ISSUES.
Appellee filed his complaint in the Clark
Circuit Court to enjoiii appellants, as officers
of the Indiana Reformatory, from sterilizing
appellee. In his complaint appellee alleges
that he is a citizen of the United States, and
of the State of Indiana; that he is an inmate
of the Indiana Reformatory and that on the
day of September, 1919, pursuant to the
recommendation of Trustees and Chief
Physician of that institution (appellants
herein) he was examined by appellant, Wil-
liams, institutional physician, and by two
surgeons whose names appellee' does not
know. That as a result of such examination
said physicians and trustees entered an order
finding that the physical and mental condi-
tion of appellee was such that, in their judg-
ment, procreation was inadvisable, that there
was no probability of the improvement of the
mental condition of appellee, and that appel-
lant Williams should perform on appellee the
operation known as vasectomy, which he will
proceed to perform if not enjoined.
Appellee attacks the constitutionality of
Chapter 215, of Acts of 1907 (pages 377 and
Detailed Review oe Litigation — Indiana
265
378), under which the officers of the Reform-
atory are proceeding and alleges that he was
not given a public trial by an impartial jury
as to his mental and physical condition or as
to the necessity of such operation, nor was
any provision made by appellants, or by any
other persons or tribunal, for plaintiff to be
heard on such questions, in person and by
counsel, nor was plaintiff furnished the accu-
sation against him, given the opportunity to
meet the witnesses against him, or compul-
sory process for obtaining witnesses in his
favor. That the operation ordered, if per-
formed, will sterilize appellee and forever de-
prive him of the power to enter into the
marriage relation and will degrade and
humiliate him.
Appellee alleges that the Act of 1907 is
unconstitutional (for the reasons assigned in
his Points and Authorities herein) and the
complaint concludes with a prayer for in-
junctive relief. The demurrer of appellants
was overruled, and on their refusal to plead
further, judgment was rendered in favor of
appellee and the injunction granted as
prayed for.
POINTS AND AUTHORITIES.
FIRST ASSIGNMENT OF ERROR.
The court did not err in overruling appel-
lants' demurrer to appellee's complaint for
the following reasons:
1. The Act of 1907 (Chapter 315, at pages
371 and 378) denies appellee the free adminis-
tration of justice in open court guaranteed
to him by Section 13 of Article I of the
Constitution of Indiana. (Sec. 57, Burns,
R. S., 1914.)
a. An inquiry as to whether an inmate
of a prison should be sterilized must be in
the open with full opportunities to present
evidence and argument for and against. An
examination before an administrative board
or officers where witnesses are not produced
or cross-examined does not give a citizen
his day in court.
Davis vs. Berry, 316 Fed. 413, 418;
13 Corpus Juris 1188-1193 (Sec. 956-957);
13 Corpus Juris 1303 (Sec. 970).
3. The Act of 1907 denies appellee the
right to a public trial by an impartial jury,
the right to be heard by himself and counsel,
the right to demand the nature and cause
of the accusation against him and to have
a copy thereof, the right to meet the wit-
nesses face to face, and the right to have
compulsory process for obtaining witnesses
in his favor guaranteed to him by Section
13 of Article I of the Constitution of Indiana
(Sec. 58, Burns, R. S., 1914).
a. Appellee is accused (by necessary
implication, if not in direct terms) of being
such a menace to society that fine or impris-
onment alone is not sufficient punishment,
but that he must have performed upon him
a serious operation. Such a charge is a
criminal prosecution which ' can be deter-
mined only by public trial in due form of law.
Davis vs. Berry, 316 Fed. 413, 418;
Cummings vs. Missouri, 71 U. S. 277, 330-
333;
Gillett on Criminal Lajif, Section 27.
b. A public trial benefits the accused by
permitting the public to see that he is fairly
dealt with and not unjustly condemned, the
presence of interested spectators keeping his
triers keenly alive to a sense of their re-
sponsibility and to the importance of their
functions.
Cooley's Constitutional Limitations (6th
ed.), page 379. .
3. The Act of 1907 deprives appellee of
life, liberty and property without due process
of law and denies appellee the equal protec-
tion of the laws, contrary to the Fourteenth
Amendment to the Constitution of the
United States.
a. Due process of law means a law which
hears before it condemns, which proceeds
on inquiry and renders judgment only after
trial.
12 Corpus Juris 1190-1191 (Sec. 956).
b. A hearing before an administrative
board, such as is provided in Acts of 1907, is
not due process of law.
Davis vs. Berry, 316 Fed. 413, 418.
c. A law which singles out "confined"
criminals, idiots, rapists and imbeciles for
operation and ignores all others of deficient
mental and physical condition, does not pro-
ceed upon a reasonable classification and
denies the class enumerated the equal pro-
tection of the laws.
Smith vs. Board of Examiners, 85 N. J. L.
46 (88 Atl. 963, 966);
Osborn vs. Thomson, 169 N. Y. Supp. 638,
664.
4. The Act of 1907 provides for the in-
fliction on appellee of cruel and unusual
punishment contrary to Section 16 of Article
I of the Constitution of Indiana.
a. While vasectomy is physically less
severe than castration, in its results it is
much the coarser and more vulgar, and is
equally cruel and inhuman.
266
Detahbd Review of Litigation — Indiana
Davis vs. Berry, 316 Fed. 413, 416-417.
b. Performance of the operation of vasec-
tomy is a punishment, whether it be ex-
pressly made one of the penalties for certain
crimes, or whether it be disguised and
veneered as a beneficent protection to society.
Cummings vs. State of Missouri, 71 U. S.
377, 330;
Davis vs. Berry, 316 Fed. 413, 417;
Rem. & Bal. Washington Statutes, Sec.
3387;
State vs. Feilen, 70 Wash. 65; 136 Pac.
75, 78.
c. Deprivation of any rights, civil or
political, previously* enjoyed, may be punish-
ment.
Cummings vs. State of Missouri, 71 U. S.
377, 330.
5. The Act of 1907 is a Bill of Attainder
and contrary to Section 10 of Article I of
the Constitution of the United States.
a. One of the rights of every man of
sound mind is to enter into the marriage
relation. Such is one of hiS civil rights and
deprivation or suspension of any civil right
for past conduct is punishment for such
conduct and falls within the definition of a
Bill of Attainder.
Davis vs. Berry, 316 Fed. 413, 419;
Cummings vs. State of Missouri, 71 U. S.
377, 320.
6. The Act of 1907 embraces more than
one subject and embraces matters not ex-
pressed in its title, contrary to Section 19
of Article 4 of the Constitution of Indiana.
a. Every act must have a title and desig-
nate a single subject, expressed in the. title.
Indiana Ry. vs. Potts, 7 Ind. 681.
7. Though every officer acts at his peril
under a statute which another claims is un-
constitutional and void, where a person will
suffer irreparable injury if the statute is
enforced, it will be presumed that it will be
enforced, and an injunction should enjoin its
enforcement, if invalid.
Davis vs. Berry, 316 Fed. 413, 418.
ARGUMENT.
That the Act of 1907 deprives the appellee
of life, liberty and property without due
process of law and that it fails to give him
the free administration of justice in open
court — his day in court— contrary both to
the State and Federal Constitutions, seems
to counsel for appellee to be so elementary
as to require no extended research or argu-
ment. Special emphasis on this glaring de-
fect in the statute was laid by counsel in
argument in the lower court, and the decision
of that court in favor of appellee was in part
based on that very ground, yet the honorable
Attorney-General has been unable to cite a
single authority in support of the star
chamber proceedings permitted by the Act
of 1907 and makes no allusion to this impor-
tant feature of the case other than casually
on page nineteen of his brief. The conclu-
sion is not unwarranted that no such decision
can be found and that the statute can not
be defended in that respect.
Due process of law means a law which
hears before it condemns, which proceeds
on inquiry, and renders judgment only after
trial (13 Corpus Juris 1190). In a criminal
proceeding due process of law requires a law
defining the offense, a court of competent
jurisdiction, accusation in due form, notice
and opportunity to answer the charge and
a trial according to the settled course of
judicial proceeding (13 Corpus Juris 1303).
Measured by these accepted standards, the
Act of 1907 is wholly insufficient. This act
defines no offense and provides for no hear-
ing. Its language, condensed, is that three
physicians shall examine the mental and
physical condition of certain confined crim-
inals, idiots, rapists and imbeciles, and, if
in the judgment of these physicians and the
Board of Managers procreation is inadvis-
able and there is no probability of improve-
ment of the mental condition of the inmate,
they shall perform such operation for the
prevention of procreation as shall be decided
safest and most effective. Although dealing
with the right of the appellee to enter the
marriage relation, not to mention his future
health and happiness, not a single safeguard
against unwarranted, unjust, arbitrary or
oppressive judgment is thrown around
appellee. When procreation is inadvisable
is left to the judgment of seven men without
the creation of- a single standard, medical
or otherwise, by which their decision is to
be governed. Neither the physicians nor the
appellee may know with certainty, to a
common intent, when and under what cir-
cumstances procreation is inadvisable. It is
a constitutional right that the charge should ,
be preferred with certainty. (Gillett on
Criminal Law, Sec. 27.)
The exact question was decided in Davis
vs. Berry, 216 Fed. 413. The Iowa statute
provided for the operation called vasectomy
on idiots, feeble-minded, drunkards, drug
fiends, epileptics, syphilitics, moral and
sexual perverts, and made it mandatory as
D]Jtaii,i;d Revie;w of Litigation — Indiana
267
to criminals who had twice been convicted
of a felony. Davis instituted an injunction
proceeding to enjoin the performance of the
operation on him because of his second con-
viction of a felony, and the District Court
in an unanimous decision paid their respects
to the lack of due process of law in the
following language:
"The hearing is by an administrative board
or officer. There is no actual hearing.
There is no evidence. The proceedings are
private. The public does not know what is
being done until it is done. What records
are examined is not known. The prisoner is
not advised of the proceedings until ordered
to submit to the operation. * * * These are
inquiries that must be held in the open with
full opportunities to present evidence and
argument for and against. • * * Due process
of law means that every person must have
his day in court, and this is as old as Magna
Charta; that some time in the proceedings he
must be confronted by his accuser and given
a public hearing.''
There is no occasion for piling authority
upon authority to prove this elementary
proposition of constitutional law. It is well
to bear in mind, however, a potent reason
for public trials enunciated by Judge Cooley
in his work on Constitutional Limitations
(6th ed., page 379), in which he states:
"The requirement of a public trial is for
the benefit of the accused; that the public
may see he is fairly dealt with and not
unjustly condemned, and that the presence
of interested persons may keep his triers
keenly alive to a sense of their responsibility
and to the performance of their functions."
The Act of 1907 is subject to other objec-
tions that will now be considered. To date
such laws have been declared invalid in the
following decisions:
Davis vs. Berry, 316 Fed. 413;
Smith vs. Board, 85 N. J. L. 46, 88 Atl. 963;
Osborn vs. Thomson, 169 N. Y. Supp. 638;
Haynes vs. Williams, Mich., 166 N. W.
938, 1918 D. L. R. A. 233.
One state only, Washington, has upheld
such a law, viz: State vs. Feilen, 70 Wash.
65; 126 Pac. 75; 41 L. R. A. (N. S.) 418.
It should be noticed that the question of
due process of law did not enter into the
Washington case, for the reason that the
statute defining the oflfense of carnal abuse
expressly made sterilization one of the penal-
ties. The accused knew what penalty might
be imposed upon him and had the oppor-
tunity during his day in court to introduce
evidence and submit argument as to why
the full penalty should not be inflicted upon
him. No such right is to be found in the
Indiana statute.
The Fourteenth Amendment to the Consti-
tution of the United States is also violated
in another particular by the Act of 1907.
The classification is so narrow as to deny
appellee the equal protection of the laws.
The Act of 1907 applies only to "confined
criminals, idiots, rapists and imbeciles," but
protects the young man similarly situated as
to his physical and mental make-up, who is
unconfined, whose sexual tendencies and
capacity may be the same as appellee. The
law certainly denies to some persons of a
class and similarly situated the protection
which it affords to others of the same class.
Under the police power the protection of
the health, morals and welfare of the people
can be afforded only by laws that apply to
all alike. Sterilization laws of New York,
New Jersey and Michigan have been held
invalid because of such a narrow classifica-
tion.
Osborn vs. Thomson, 169 N. Y. Supp. 638,
644-645;
Smith vs. Board, 85 N. J. L. 46, 88 Atl. 963,
965-967;
Haynes vs. Williams, — Mich. — ; 166
N. W. 938, 1918, D. L. R. A. 333.
No matter what disguise or veneer may
be applied by the Act of 1907, the operation
provided for is punishment.
"One of the rights of every man of sound
mind is to enter into the marriage relation.
Such is one of his civil rights."
Davis vs. Berry, 316 Fed. 413, 419.
"The deprivation of any rights, civil or
political, previously enjoyed, may be punish-
ment; the circumstances attending and the
causes of the deprivation determining the
fact."
Cummings vs. Missouri, 71 U. S. 377, 330;
18 L.Ed. 363.
In the only state in which a sterilization
Statute has been upheld the legislature ex-
pressly denominates the operation to be a
punishment in these words:
"The court may, in addition to such other
punishment or confinement as may be im-
posed, direct an operation to be performed."
Sec. 3387, Rem. & Bal. Washington
Statutes,
and the court throughout its opinion con-
siders the penalty in the light of a punish-
ment.
268
DETAILED Review of Litigation — Indiana
The operation provided for in the Act of
1907 is not only a punishment, but is cruel
and inhuman within the meaning of the
constitutional provision.
"There is a difference between the opera-
tion of castration and vasectomy, castration
being physically more severe than the other.
But vasectomy in its results is much the
coarser and more vulgar. But the purpose
and result of the two operations are one
and the same. When Blackstone wrote his
commentaries he did not mention castration
as one of the cruel punishments, quite likely
for the reason that with the advance of civili-
zation the operation was looked upon as
too cruel, and was no longer performed. But
each operation is to destroy the power of
procreation. It is, of course, to follow the
man during the balance of his life. The
physical suffering may not be so great, but
that is not the only test of cruel punishment:
the humiliation, the degradation, the mental
suffering are always present and known by
all the public, and will follow him whereso-
ever he may go. This belongs to the Dark
Ages. * * * Our conclusion is that the
infliction of this penalty is in violation of the
Constitution, which provides that cruel and
unusual punishment shall not be inflicted."
Davis vs. Berry, 216 Fed. 413, 416-417.
The physical effects of the operation are
discussed at length in Osborn vs. Thomson,
169 N. Y. Supp. 627, 640-643, its cruelty
clearly established, and its baneful effects
both on the individual and upon society
established from its practical workings.
The Act of 1907 is likewise a Bill of
Attainder, for one of the rights of every man
of sound mind is to enter into the marriage
relation. Such is one of his civil rights, and
deprivation or suspension of any civil right
for past conduct is punishment for such
conduct and it fulfills the definition of a Bill
of Attainder.
Davis vs. Berry, 216 Fed. 413, 419;
Cummings vs. Missouri, 71 U. S. 277, 320.
Counsel for appellants seek to uphold the
validity of the Act of 1907 as an exercise
of the police power in behalf of the public
health, safety and welfare. Without entering
into a detailed discussion of this broad sub-
ject, it is sufficient to observe that where
this question has been considered the courts
have invariably held the sterilization statute
not to be a valid exercise of the police power.
Justice Rudd, in Osborn vs. Thomson, 169
N. Y. Supp. 638, at page 644, in considering
a sterilization law as an exercise of the police
power, says:
"Such does not seem to this court to be
the proper exercise of the police power. It
seems to be a tendency almost inhuman in
its nature."
Justice Harrison, in Smith vs. Board, 82
N. J. L. 46, 88 Atl. 963, 965-966, says:
"The question thus presented is therefore
not one of those constitutional questions that
are primarily addressed to the Legislature,
but a purely legal question as to the due
exercise of the police power, which is always
a matter for determination by the courts.
* * * The feeble-minded and epileptics are not
the only persons in the community whose
elimination as undesirable citizens would, or
might in the judgment of the Legislature, be
a distinct benefit to society. If the enforced
sterility of this class be a legitimate exercise
of governmental power, a wide field of legis-
lative activity and duty is thrown open to
which it would be difficult to assign a legal
limit. If in the present case we decide that
such power exists in the case of epileptics,
the doctrine we shall have enunciated cannot
stop here. For epilepsy is not the only dis-
ease by which the welfare of society at large
is injuriously affected. * • * There are other
things, besides physical or mental diseases,
that may render persons undesirable citizens,
or might do so in the opinion of a majority
of a prevailing legislature. Racial difference,
for instance, might afford a basis for such
an opinion. * * *
"How far is government constitutionallj'
justified in the theoretical betterment of so-
ciety by means of the surgical sterilization
of certain of its unoffending, but undesirable,
members? If some, but by no means all,
of these illustrations are fanciful, they still
serve their purpose of indicating why we
place the decision of the present case upon
a ground that has no such logical results or
untoward circumstances."
It is respectfully submitted that the judg-
ment of the Clark Circuit Court should be
affirmed because:
(a) Appellee is not given his day in court
by the Act of 1907;
(b) That, if viewed as a punishment, the
operation of vasectomy is a cruel and
inhuman punishment and the Act of 1907 is
a Bill of Attainder;
(c) If viewed merely as an exercise of
the police power for the public welfare, the
classification of this act is not only so narrow
as to deny appellee the equal protection of
DRTAiMcn Rrvii'W of Litigation — Indiana
269
the law, but any sterilization law that might
be framed is so repulsive and from its very
nature so susceptible to abuse, that it is un-
likely that a valid law could be framed.
WILMER T. FOX,
Attorney for Appellee.
c. Judgment :
SUPRKME COURT OF INDIANA.
November Term, t():Ml.
On the 11th day of May, I'.i^l, being the
147th judicial day of said November Term,
1920.
Case No. 23T01). Appealed from the Clark
Circuit Court.
Opinion and judgment pronounced by
Associate Judge Hon. Howard L. Townsend.
Appellants were enjoined from performing
vasectomy on appellee, who is a prisoner in
the Indiana Reformatory.
The Chief Physician, Board of Managers
and two chosen surgeons were proposing to
act pursuant to the following:
(Here follows the full text of the Indiana
sterilization statute. Chapter 215 of the Acts
of 1907, page 377. See p. ITi.of this book.)
In Davis vs. Berry et al. (U. S. District
Court. S. D.), 216 Fed. Rep. 413, in pass-
ing on an Iowa statute similar to the one
here in question, on page 21 S. the court uses
this language:
"The hearing is by an administrative board
of officers. There is no actual hearing.
There is no evidence. The proceedings are
private. The public does not know what is
being done until it is done. Witnesses are
not produced, or, if produced, they are not
cross-examined. * * * The prisoner is not
advised of the proceedings until ordered to
submit to the operation. * ■* * Due process
of law means that every person must have
his day in court, and this is as old as Magna
Charta; that some time in the proceeding he
must be confronted by his accuser and given
a public hearing."
In the instant case the prisoner has no
opportunity to cross-examine the experts
who decide that this operation should be per-
formed upon him. He has no chance to
bring experts to show that it should not be
performed; nor has he a chance to controvert
the scientifie question that he is of a class
designated in the statute. And wholly aside
from the proposition of cruel and unusual
punishment, and infliction of pains and penal-
ties by the legislative body through an
administrative board, it is very plain that
this ,ict is in violation of the Fourteenth
.Vmendment of the Federal Constitution in
that it denies appellee due process.
The case of Davis vs. Berry, supra, is
interesting m its discussion of questions
other than due process. It also cites the
adjudicated cases in other states on similar
statutes.
The trial court was correct in enjoining
appellant from performing, or causing to be
performed, the operation of \'asectomy upon
appellee.
Judgment of the trial court is therefore
affirmed.
CHAPTER VII. (Concluded)
PART VIII. OREGON.
1. State Board of Eugenics.
a. Record of Investigation 271
b. Findings : 271
c. Order for Sterilization 272
2. Circuit Court for the County of Marion.
a. Demurrer 272
b. Brief of Defendant in Support of Demurrer 273
c. Points and Authorities (by Smith & Shields and Allan
Bynon, amicus curiae, in Support of Defendant's Demurrer) 279
d. Answering brief of Plaintiflf 283
e. Opinion of Percy R. Kelly and Geo. G. Bingham, Judges 287
f. Decision of the Circuit Court 289
DfiTAILUD RUVIUW 01? Ll'l'IGATlON — OrEGON
271
(VIII). OREGON.
(Chapter 379 General T.aws of Oregon. 191 T.)
In Oregon the duty of examing into the
innate traits, the mental and physical con-
dition and the personal records, family traits
and histories of defectives and degenerates
confined in state institutions is vested in the
State Board of Eugenics. It is the duty of
the superindendents of the Oregon State
Hospitals and the Oregon State Penitentiary
to report quarterly to the Board of Eugenics
all iimiates who are * * ♦ "'persons potential
of producing offspring, who, because of in-
heritance of inferior or antisocial traits would
probably become a social menace or a ward
of the State.'' Upon decision of this Board
of the inadvisability of procreation by such
defective or degenerate person, the law re-
quires the Board of Eugenics to issue an
order to the superintendent of the institution
in which such person is conlined, to per-
form or cause to be performed an operation
for sterilization.
The order of the Board of F.ugenics.
.January S7th, 1921, for sterilization of Jacob
Cline, an inmate of the Oregon State Peni-
tentiary, convicted for the crime of rape,
gave rise to a test of the constitutionality of
the statute.
The principal documents in the case
follow:
1. STATE BOARD OF EUGENICS.
In the Matter of Jacob Cline.
a. Record of Investigation.
On the 2Tth day of January. 1921, tlu- State
Board of Health mot with the Super-
intendents of the following Institutions:
Mr. I., H. Compton. Warden, State Peni-
tentiary ;
l")r. R. E. l.ee Steincr, Supt. State Hospi-
tal;
Dr. J. N. Smith, Supt. Institution fof
Feeble-Minded;
the same, together, constituting the State
Board of Eugenics, said meeting being held
in the city of Salem, County of I^Iarion,
State of Oregon, pursuant to. and as re-
quired by, law. Said meeting was held for
the purpose, among other things, of examin-
ing into the innate traits, the mental and
physical condition, the personal records and
the family traits and history of JACOB
CLINE, said Jacob Cline having been pre-
viously reported on the 1st day of Januarx-
1981, by L. H. Compton. the Warden of the
Oregon State Penitentiary as being a person
feeble minded, insane, epileptic, habitually
criminal, morally degenerated or sexually
perverted, towit:
Sexually perverted, and a potential parent
of offspring who, because of inheritance of
inferior or antisocial traits, would probably
become a social menace or a ward of the
State.
Among other things, the State Board of
Eugenics did carefully examine into the in-
nate traits, the mental and physical con-
dition, the personal record, and the family
traits and histories of the said Jacob Cline
so far as the same can be ascertained, and
for this purpose the State Board of Eugenics
summoned and examined the following wit-
nesses:
Mr. Compton, and Mr. Lewis, assistant
Warden who under oath testified before the
State Board of Eugenics in substance as
follows:
Seems to have mania for sexual intercourse
with little girls. Committed to Penitentiary
for rape.
(Signed') .\NDRE\^' C. SMITH,
Secretary State Board of Health.
Secretary State Board of Eugenics.
b. Findings.
Based upon the examination of Jacob
Cline as shown by the record of investigation
in the above entitled matter, in the judgment
of a majority of the members of the State
Board of Eugenics, towit: Dr. A. C, Smith.
Dr. F. M. Brooks, Dr. W. B. Morse. Dr. C.
J. Smith, Dr. Geo, E. Houck. Dr. J. H.
Rosenberg, Dr. R. E. L. Steincr, Dr. J. N.
Smith and Mr. L. H. Compton; procreation
by the above named Jacob Cline. who is
now confined in the State Penitentiary \AOuld
produce children with an inherited tendency
to fceble-mindedncss, insanity, epilepsy,
criminality or degeneracy towit: lIcKoneracy.
and there is no probability th"t the condition
of said Jacob Cline will improve to such an
extent as to render procreation by said
Jacob Cline advisable, and that the physical,
metal, neutral or psychic condition, to wit:
the physical and psychic condition of said
Jacob Cline will be substantially improved
by sterilization in the following manner, to-
wit: I'.ma.sculation.
Dated at Salem. Oregon, this '.irth day of
January 1921.
(SiRuod) .WDREW C. SMITH.
Secretary State Board of Health.
Secretary State Board of Eugenics.
272
Detailed Review of Litigation — Oregon
c. Order.
To L. H. Compton, Warden of the Oregon
State Penitentiary.
Greeting:
Based upon the investigation conducted
at Salem, Oregon, on the 27th day of Janu-
ary, 193], as shown by the record thereof,
a copy of which is hereto attached, and upon
the result of such investigation, as shown by
fhe Findings of the State Board of Eugenics,
a copy of which is hereto attached, you are.
hereby directed to perform, or cause to be
performed, upon JACOB CLINE above
named, an operation, sterilizing the said
JACOB CLINE by emasculation, which is
deemed best by the State Board of Eugenics.
The purpose of this order, and of the in-
vestigation and findings of the State Board
of Eugenics, is for the betterment of the
physical, mental, neural or psychic condition
of the said Jacob Cline and not in any
manner as a punitive measure.
Dated at Salem, Oregon, this 27th day of
January, 1921. ■»
(Signed) W. B. MORSE, Chairman.
(Signed) ANDREW C. SMITH,
Secretary State Board of Health.
Secretary State Board of Eugenics.
2. CIRCUIT COURT FOR THE
COUNTY OF MARION.
a. Demurrer.
IN THE CIRCUIT COURT OF THE
STATE OF O'REGON, FOR THE
COUNTY OF MARION.
STATE BOARD OP)
EUGENICS,
Plaintiff, I No. 15443.
vs. I DEMURRER.
JACOB CLINE,
Defendant.
Comes now Jacob Cline, the above named
defendant, through his attorney, Tom Gar-
land, and demurs to the Order and
Findings of the "State Board of Eugenics"
and to the entire proceedings herein, on the
grounds that the facts stated do not consti-
tute a crime, and do not state sufficient to
constitute a cause of action, or suit, and the
said board has no lawful right to make said
Order or Findings; that the law creating the
said Board, and under and by virtue of
which these proceedings are had is unconsti-
tutional and void for the following reasons,
and upon -the following grounds:
1st. That the Ac.t and particularly Sec-
tions 85 to 96 inclusive of Chapter 864, 1919
Session Laws, creating the said Board of
Eugenics, violates the provisions of the
Fourteenth Amendment of the United States
Constitution in that said Sections and Law
are a denial to this defendant of the equal
protection of the laws guaranteed to him
under said 14th Amendment, and that the
alleged classification in which he is placed is
a most unreasonable classification and is of
such a general nature as to be ambiguous and
unreasonable, and is not based upon reason-
able grounds; and is an unjust discrimina-
tion against this defendant as it unreasonably
singles certain classes of which this de-
fendant is alleged to be one, of a vast
number of similar classes that would come
within the purview of the attempted legis-
lation, and is a denial to certain classes of
citizens, and to this defendant of the same
rights given to others; that it is unduly
oppressive upon the individual; that it con-
stitutes an unvrarranted assault upon his
person, and is an inhuman, an unnatural
and cruel mutilation and is an unreasonable
infringement upon his personal rights, guar-
anteed him by the said 14th Amendment to
the United States Constitution.
That said law. Chapter 264, 1919 Ses-
sions Law, and particulaily Sections 85 to
96 inclusive thereof, violates this defendant's
rights under
2nd. Article I, Section 12. Constitution
of Oregon which provides,
"No person shall be put in jeopardy
twice for the same offense . . ."
and violates this defendant's rights under
3rd. Article I, Section 13, Constitution
of Oregon which provides,
"No person arrested or confined in
jail shall be treated with unnecessary
rigor"
and violates this defendant's rights under
4th. Article I, Section 15, Constitution of
Oregon which provides,
"Laws for the punishment of crime
shall be founded upon the principles of
reformation and not of vindictive
justice"
and violates this defendant's rights under
5th. Article I, Section 16, Constitution of
Oregon, which provides,
"... cruel and unusual punishment
shall not be inflicted, but all penalties
shall be in proportion to the offense"
and violates this defendant's rights under
6thr" Article I, Section 80, Constitution of
Oregon, viz:
Detaudd Review of Litigation — Oregon
273
"No law shall be passed granting to
any citizen or class of citizens, privil-
eges or immunities which, upon the
same terms shall not equally belong to
all citizens"
and violates this defendant's rights under
7th. Article 1, Section 15, Constitution
of Oregon, viz:
"No conviction shall work corruption
of blood or forfeiture of estate."
8th. That the said legislative enactment
namely Chapter 364, 1919 Session Laws,
and Sections 85 to 96, inclusive, under which
these proceedings are brought EMBRACES
MATTER NOT PROPERLY EX-
PRESSED IN THE TITLE in this:
So much of the Act as provides for
'emasculation' and for 'such a type of steril-
zation as may be deemed best by said
Board' constitutes matters which are not
properly connected with the subject ex-
pressed in the Title, since the Title men-
tions merely sterilization, and gives no hint
of any provision for emasculation, or any
other operation except sterilization, and
therefore conflicts with Section 30 of
Article IV of the Constitution of the State
of Oregon, and hence is unconstitutional
and void.
9th. That the aforesaid Act and Law
under which these proceedings are brought
EMBRACES MORE THAN ONE SUB-
JECT AND INCLUDES MATTERS NOT
PROPERLY CONNECTED THERE-
WITH, and therefore conflicts with Sec-
tion 20 of Article IV of the Constitution
of the State of Oregon, and hence is uncon-
stitutional and void.
10th. That the aforesaid Act under which
these proceedings are brought IS BROADER
THAN THE TITLE OF SAID ACT,
and therefore conflicts with Section 30 of
Article IV of the Constitution of the State
of Oregon, and hence is unconstitutional
and void.
11th.. Th^t said act creating said Board
of Eugenics is unconstitutional and void
because as is shown upon its face, it blends
the executive or administrative departments
of government with the judicial, and shows
that persons charged with official duties
under one of these departments are exercis-
ing functions of another, and therefore con-
travenes Article III, Section I, of the Con-
stitution of Oregon.
Attorney for Defendant.
TOM GARLAND.
I, Tom Garland, Counsel for defendant
Jacob Cline, hereby certify that in my
opinion the foregoing demurrer is well
founded in Law.
TOM GARLAND.
I, Tom Garland, attorney for Jacob
Cline, the within named Defendant, do here-
by certify that I served the within De-
murrer on John H. Carson, Esq., District
Attorney for Marion County, State of
Oregon, Attorney for the within State
Board of Eugenics, by mailing to said John
H. Carson at his office at Salem, Oregon,
a true copy thereof, duly certified with
postage fully prepaid thereon, on the 27th
day of June, 1921.
TOM GARLAND,
Attorney for Defendant.
b. Brief of defendant in support of
demurrer.
IN THE CIRCUIT COURT OF THE
STATE OF OREGON, FOR THE
COUNTY OF MARION.
STATE BOARD OFl No. 15443.
EUGENICS,
Plaintiff,
BRIEF OF DE-
FENDANT IN
SUPPORT OF
DEMURRER.
JACOB CLINE,
Defendant.
The FIRST and SIXTH grounds of De-
murrer is, that the Sections of this Act,
creating the State Board of Eugenics (Sec.
85 to 96 inclusive. Chapter 364, 1919, S. L.)
denies to this defendant, and a certain al-
leged class of citizens, the "Equal protection
of the laws" guaranteed by the 14th Amend-
ment of the U. S. Constitution and Art. 1,
Sec. 30, Constitution of Oregon, in that, the
alleged class, to which it is claimed he
belongs, is an arbitrary discrimination and
an unreasonable classification.
While the defendant recognizes that it is
difficult to determine whether a particular
classification is unreasonable or reasonable,
and that no definite rule can be laid down
in this regard, the general rule seems tO' be,
and it is clearly logical and jus', that the
Court must be able to say, that there is no
fair reason for the law that would not re-
quire, with equal force, its extension to
others whom it leaves untouched; that the
PURPOSE of the Law must be taken into
consideration, and all persons in like situa-
tion and circumstances relative to the par-
ticular legislation, undistinguishable from
those of the members of the class, must be
brought under the influence of the Law. A
274
D^TAHSD Review of Litigation — Oregon
class cannot be carved out of a class nor a
class split. In other words, there must not
be a mere ARBITRARY selection, making
the law apply only to certain persons, while
the PURPOSE of the law would not be
carried out without including other persons
in like situation.
In the case at bar, the whole purpose of
the Enactment is to insure offspring who
will not bear hereditary traits which would
weaken the human race. That is the SOLE
purpose; it says, it is not as a punitive meas-
ure, but to protect posterity from hereditary
diseases. It then proceeds to arbitrarily
classify insanity, epileptics, criminality and
degeneracy as being such a classification as
would accomplish this purpose.
A just and proper classification would be
ALL persons affected with diseases that
cannot help but be transmitted to oflfspring,
and of such a nature as would be a material
detriment to the production of healthy, sane,
normal individuals.
It is a matter not only of medical knowl-
edge, but of general notoriety, that tuber-
culosis, syphilis and cancer are diseases that
are surely transmitted to the offspring, with
often weakening results, much more so than
epilepsy; and that a tendency to criminality
is not only not transmitted to posterity, but
is often cured in the individuals. Criminality
certainly is not transmitted to posterity; as
an example, Australia was settled up by and
was used as a colony for English criminals
and their descendants, and is now one of the
most progressive and substantial countries
in the world.
The defendant submits that tjie attempted
classification would apply to such a small
number of persons, that keeping in view the
PURPOSE of the legislation, as to amount
to a nullity, towards accomplishing its ends;
and simply means a denial to this limited
number of persons of the "Equal protection
of the laws."
AUTHORITIES for 1st and 6th Points.
"No definite rule can be laid down as to
determine whether a Classification is reason-
able or unreasonable."^ — 6, R. C. L., Sec.
373-374.
"If it attempts to creatie distinctions and
classifications between the citizens of this
State, the basis of such a classification must
be natural and not arbitrary." — Stratton vs.
Morris, 89 Tenn. 497. (12 L. R. A. 70.)
"The classification must be upon reason-
able grounds, it cannot be a mere arbitrary
selection."— Gulf vs. Ellis, 165 U: S. 150.
"There must be SUCH A DIFFERENCE
between the situations and circumstances of
ALL the Members of the class, and the
situation and circumstances of ALL OTHER
members of the STATE IN RELATION
TO THE SUBJECTS of the discriminatory
legislation as presents a just, natural reason
for the difference made in their liabilities and
burdens, and in their rights and privileges."
—6 R. C. L, Sec. 374. State vs. Sherman.
18 Wyo. 169. State vs. Chicago, M. & St.
P. R R. Co., 114 Minn. 122; 105 P. A. C. 392;
130 N. W. 545. 33 L. R. A. (N. S.) 494.
1912 B. ANN Cas. 1030
"In, order that a statute may comply with
the necessary requirements as to due process
of law, it MUST NOT VIOLATE the
limitations as to classification imposed by
the Constitutional inhibition as to the denial
of the equal protection of the law." — 6. R.
C. L, Sec. 369.
" all who are in a situation and cir-
cumstances relative to the subjects of the
discriminatory legislation indistinguishable
from those of the members of the class must
be brought under the influence of the law
and treated in the same way as are the
members of the class." — 15 ANN Cas. 849.
"The only case besides the reported case
that appears to have passed on the validity
of an asexualization statute is Smith vs.
Board of Examiners of Feeble-Minded (N.
J.) 88 Atl. 963. It appeared in that case that
the board of examiners, created by 'an act
to authorize and provide for the sterilization
of feeble-minded, including idiots, imbeciles
and morons, epileptics, rapists, certain crim-
inals and other defectives," (N. J. P. L. 1911,
p. 353), ordered that the operation of salpin-
gectomy be performed on an epileptic inmate
of a state charitable institution as the most
effective operation for the prevention of pro-
creation. The Court held that the statutja
in question was based on a classification that
bore no reasonable relation to the object of
such, police regulation, and heivce denied to
the individuals of the class so selected the
equal protection of the laws guaranteed by
the fourteenth amendment to the Constitu-
tion of the United States. The Court said:
"The prosecutrix falls within the classifica-
tion of the statute in that she is an inmate
of the State Village for Epileptics, a state
charitable institution, 'the objects' of which,'
las stated in the act creating it, are 'to secure
the humane, curative, scientific and eco-
nlomical care and treatment of epilepsy,' 4
Comp. Stat. p. 4961. The prosecutrix ha'
DetailiJd Reviijw of Litigation — Oregon
275
been an inmate of this charity since 1903,
and for the five years last past she has had
no attack of the disease. From this state-
ment of the facts it is clear that the order
with which we have to deal threatens pos-
sibly the life, and certainly the liberty of
the prosecutrix in a manner forbidden by
both the state and federal constitutions, un-
less such order is a valid exercise of the
police power. The question thus presented
is therefore not one of those constitutional
questions that are primarily addressed to the
legislature, but a purely legal question as
to the due exercise of the police power,
which is always a matter of determination
by the courts. This power, stated as broadly
as the argument in support of the order
requires, is the exercise by the legislature
of a state of its inherent sovereignty to en-
act and enforce whatever regulations are in
its judgment demanded for the welfare of
society at large in order to secure or guard
its order, safety, health, or morals. The
general limitation of such power to which
the prosecu'rix must appeal is that under
our system of government the artificial en-
hancement of the public welfare by the forc-
ible suppression of the constitutional rights
of the individual is inadmissible. Somewhere
between these two fundamental propositions
the exercise of the police power in the pres-
ent case must fall, and its assignment to
the former rather than to the latter involves
consequenifces of the greatest magnitulde.
For while the case in hand raises the very
important and novel question whether it is
one of the attributes of government to essay
the theoretical improvement of society by
destroying the function of procreation in cer-
tain of its members who are not malefactors
against its laws, it is evident that the decision
of that question carries with it certain logical
consequences of the greatest magnitude.
For the feeble-minded and epileptics are not
the only persons in the community whose
elimination as undesirable citizens would, or
might in the judgment of the legislature, be
a distinct benefit to society. If the enforced
sterility of this class be a legitimate exercise
of governmental power, a wide field of legis-
lative activity and duty is thrown open to
which it would be difficult to assign a legal
limit. If in the present case we decide that
such a power exists in the case of epileptics,
the doctrine we shall have enunciated cannot
stop there. For epilepsy is not the only
disease by which the welfare of society at
large is injuriously affected; indeed, not being
communicable by contagion or otherwise,
it lacks some of the gravest dangers that
attend upon such diseases as pulmonary
consumption or communicable syphilis. So
that it would seem to be a logical necessity,
that if the legislature may, under the police
power, theoretically benefit the next genera-
tion by the sterilization of the epileptics of
this, it both may and should pursue the like
course with respect to the other diseases
mentioned, with the additional gain to
society thereby arising from the protection
of the present generation from contagion or
contamination. Even when these and many
other diseases that might be named have
been included, the limits of logical necessity
have, by no means, been reached. There
are other things besides physical or mental
diseases that may render persons undesirable
citizens, or might do so in the opinion of a
majority of a prevailing legislature. Racial
differences, for instance, might afford a basis
for such an opinion in communities where
that question is unfortunately a permanent
and paramount issue. Even beyond all such
considerations it might be logically con-
sistent to bring the philosophic theory of
Malthus to bear upon the police power to
the end that the tendency of population to
outgrow its means of subsistence should be
counteracted by surgical interference of the
sort we are now considering. Evidently the
large and underlying question is, how far
is government constitutionally justified in
the theoretical betterment of society by
means of the surgical sterilization of certain
of its unoffending, but undesirable, mem-
bers? If some, but by no means all, of these
illustrations are fanciful, they still serve their
purpose of indicating why we place tho
decision of the present case upon a ground
that has no such logical results or untoward
consequences. Such a ground is presented
by the CLASSIFICATION upon which the
present statute is based, which is of such a
nature that the persons included within it
are not afforded the equal protection of the
laws under the Fourteenth Amendment of
the Constitution of the United States, which
provides that 'no state shall deny to any
person within its jurisdiction the equal pro-
tection of the laws.' Under this provision it
has been universally held that a state statute
that bears solely on a class of persons
selected by it must not only bear alike upon
all individuals of such class, but that the
class as a whole must bear some reasonable
relation to the legislation thus solely affect-
276
DeitailKd Review of Litigation — Oregon
ing the individuals that compose it. 'It
is apparent,' said Mr. Justice, Brewer in
Gulf, etc., R. Co. vs. Ellis, 165 U. S. 150,
17 S. Ct. 355, 41 U. S. (L. ed) 666, after
a review OF MANY CASES, 'that the
mere fact of classification is not sufficient
to relieve a statute from the reach
of the equality clause of the . Fourteenth
Amendment, and that in all cases it must
appear, not only that a classification has
been made, but also that it is one based
upon some reasonable ground — some differ-
ence which bears a just and proper relation
to the attempted classification — and is not a
mere arbitrary selection. 'This summarizes a
mass of cases that might be cited. Turning
our attention now to the classification on
which the present statute is based, and laying
aside criminals and persons confined in penal
institutions with which we have no present
concern, it will be seen that— as to epileptics,
with which alone we have to do — the force
of thei statute falls wholly upon such epilep-
tics as are 'inmates confined in the several
charitable institutions in the counties and
state.' It must be apparent that the class
thus selected is singularly narrow when
the broad purpose of the statute and the
avowed object sought to be accomplished by
it are considered. The objection, however,
is not that the class is small as compared
with the magnitude of the purpose in view,
which is nothing less than the artificial im-
provement of society at large, but that it is
singularly inept for the accomplishment of
that purpose in this respect, vir., that if uuch
object requires the steriliza'ion of the class
so selected, then a fortiorari does i' require
the sterilization of the vastly greater class
who are not protected from procreation by
their confinement in state or county institu-
tions. The broad cla.^s to which the legis-
lative remedy is normally applicable is that
of epileptics; i. p., all epileptics. Now.
epilepsy, if not, as some authorities contend,
mainly a disease of the vvcH to do and over-
fed, is at least one that affects all ranks of
society, the rich as well as the poor. If it
be conceded, for the sake of argument. lli;il
the legislature may select one of these broad-
ly defined classes — i. e., the poor — and may
legislate solely with reference to this class,
it is evident that, by the further subclassifi-
cation of the poor into those who are and
those who are not inmates in public chari-
table institutions, a principle of selection is
adopted that bears no reasonable relation to
the proposed sck^me for the artificial better-
ment of society. For not only will society
at large be just as injuriously affected by the
procreation of epileptics who are not con-
fined in such institutions as it will be by
the procreation of those who are so confined,
but the former vastly outnumber the latter,
and are, in the nature of things, vastly more
exposed to the temptation and opportunity
of procreation, which indeed in cases of those
confined in a presumably well-conducted
public institution is reduced practically to
nil. The particular vice, therefore, of the
present classification is not so much that it
creates a subclassification, based upon no
reasonable basis, as that, having thereby ar-
bitrarily created two classes, it applies the
statutory remedy to that one of those classes
to which it has the least, and in no event a
sole, application, and to which indeed upon
the presumption of the proper management
of our public institutions it has no applica-
tion at all. When we consider that such
statutory scheme necessarily involves a sup-
pression of personal liberty and a possible
menace to the life of the individual who
must submit to it, it is not asking too much
that an artificial regulation of society that
involves these constitutional rights of some
of its members shall be accomplished, if at
all, by a statute that does not deny to the
persons injuriously affected the equal pro-
tection of the laws guaranteed by the Fed-
eral Constitution."
Note: State vs. Feilen. (^^■ash.) ANN.
CASES. 1914 B. 515.
The EIGHTH ground of Demurrer is that
the Act EMBRACES MATTERS NOT
PROPERLY EXPRESSED IN THE
TITLE.
"The title must not be a cover for sur-
reptitious legislation, but the subject or ob-
ject of every law must be so expressed in
the title as to give notice of the contents of
the law."— R. C. Law. p. 848. Sec. 94.
"The title of an act defines its scope. It
can contain no valid provisions beyond the
range of the subject there stated."— Peter-
son vs. Lewis, 78 Ore. 641. 654.
And as stated in 26 A. & E. Encyc. of
Law, (2nd Ed.), 589, 590.
"Where the language employed in the title
is such as would lead a reasonable man to
suppose that the legislature intended, to re-
strict the scope of the act within certain
limits spcciHed in the title, such act is un-
constitutional so far as concerns any pro-
visions outside of the limits thus marked
DiiTAiLfiD Review of Litigation — Oregon
277
out, even though such provisions might
properly have been mcluded in the act under
a broader title."
So much of the act as provided for "emas-
culation'' and for "such a type of steriliza-
tion as may be deemed best by said Board"
constitutes matters which are not properl}-
expressed in the Title, since the Title men-
tions merely "sterilization" and gives no
hint of any provision for "emasculation".
"Sterilization" — Act or process of steril-
izing; also, state of being sterile.
"Emasculate" — To deprive of virile orpro-
creative power, to castrate; geld, to render
effeminate. — Websters International Diction-
ary. (New) G. & C. Merriam Co. 1911.
"Words and Phrases" has no definition for
sterilization or emasculation. "Sterilization"'
is generally recognized, and has a POPU-
LAR meaning as an operation consisting of
ligating and resecting a small portion of
the vas deferens. It is very simple and
easy to perform and may be done without
administering an anaesthetic, either general
or local. It requires only a few minutes
time to perform the operation and the sub-
ject returns to his work immediately, and is
effectively STERILIZED. It does not
affect the physical capacity of the individual
to perform the sexual act, but merely de-
stroys the ability to procreate.
"EMASCULATE" is to castrate; and is a
serious surgical operation, often endangering
the subject's life, particularly like the case
at bar where the defendant is a man of ad-
vanced years. The operation renders the in-
dividual effeminate, changes his voice, skin,
hair, weight, and renders his mind dull and
rapidly causes a complete deterioration of
all the subject's faculties, as an example,
A convict in Salem named Pagan was re-
cently emasculated, that is castrated, and the
papers were full of how he was placed upon
the operation table as he had consented to
being sterilized, under a promise of release:
and when he came out from under the an-
aesthetic and found he had been castrated he
rapidly became insane, and when released
shot a man near the Dalles and attempted to
kill the family and he was shot by the offi-
cers.
Men charged with FORGERY, LAR-
CENY, BURGLARY AND EVERY known
crime, to the number of Sixty, it is stated,
have been slated for castration in the Ore-
gon State Penitentiary. A wholesale butch-
ery of these poor unfortunate individuals,
simply to satisfy the obsession of some
well meaning but narrow minded reformers
will blot the fair name of Oregon.
Emasculation was not mentioned in the
Title of the Act. The title is a restrictive
one.
The NINTH and TENTH grounds of
Demurrer are that the Act EMBRACES
MORE THAN ONE SUBJECT AND IN-
CLUDES MATTERS NOT PROPERLY
CONNECTED THEREWITH, and' is
broader than the title of said act.
Article IV, Sec. 20, Constitution of Ore-
gon provides:
"Every act shall embrace BUT ONE
SUBJECT, and matters properly connected
therewith which subject shall be expressed
In the title."
But if any subject shall be embraced in
an act which shall not be expressed in the
title, SUCH ACT shall be void only to so
much thereof as shall not be expressed in
the title.
"It is not essential that the Legislative
title to an act shall specify with particularity
all the different provisions of the act. It is
sufficient, if the general subject of the act
be contained in the title and is a fair index
to the legislative purpose and if all the pro-
visions of the act are germane to such sub-
ject and do not relate to ma'.ters wholly
foreign thereto." — In re Willow Creek — 74
Ore. 615.
"The object of this provision was to pro-
hibit embracing in bills matters having no
relation to each other, wholly incongruous
and of which the title gives no no'ice, thus
securing the adoption of measures by fraud
without attracting attention, or combining
subjects representing diverse interests, in or-
der to unite the members of the legislature
who favored either in support of all." —
State vs. Shaw, 23 Ore. 388. Clemensen
vs. Peterson, 3.5 Ore. 47. State vs. Levy,
76 Ore. 63. State vs. Perry, 77 Ore. 266.
The title of this act purports primarily to
create "A State Board of Health". It is a
restrictive title. If it were an Act "Relating
to the Public Health" it might properly in-
clude a good many of the subjects embraced
in this act, but not all of them, as some of
the subjects embraced in this act are not
even germane to or properly connected with
that subject. It is simply an attempt to
bunch a lot of different subjects.
The ELEVENTH ground of Demurrer is,
that the Act shows on its fae that persons
charged with official duties under one of
the departments, the administrative, which
278
DuTAiLi^D ReviUw 0^ Litigation — Oregon
is a branch of the executive, is exercising
functions of another, that is of the judicial.
Article III, Sec. 1, Constitution of Oregon,
provides:
"The powers of the Government shall be
divided into separate departments, the legis-
lative, the executive, including the adminis-
trative, and judicial; and no person charged
with official duties under one of these de-
partments shall exercise any of the functions
of another except as in this Constitution
expressly provided."
"under Article VIT. — 1. A, as amended,
the Legislature was authorized to confer
judicial power upon the State Accident
Commission since under the Amend-
ment the legislature or the people may con-
fer judicial powers upon any tribunal se-
lected, SO LONG AS THE DIFFERENT
DEPARTMENTS OF GOVERNMENT
ARE NOT MADE TO ENCROACH
UPON EACH OTHER.— Evanhoflf vs.
State Industrial Accident Commission, 78
Ore. 515.
"What is Judicial power within Constitu-
tional Theory as to separation of Powers of
Government." — Note in 1913 E. Ann. Cas.
1097.
Section 85 of the Act provides:
"There is hereby established and consti-
tuted for the State of Oregon a 'State Board
of Eugenics,' which shall be composed of
the State Board of Health, the Sup't of the
Oregon State Hospital, the Sup't of the
Eastern Oregon State Hospital, the Sup't
of the State Institution for Feeble-Minded.
and the Sup't of the Oregon State Peniten-
tiary, whose duties shall be as hereinafter
defined."
These are ALL Administrative Officers
of the State of Oregon, and are appointees
of the Executive.
Now our inquiry is, do they perform Ju-
dicial functions under the Act in question.
Sec. 86 provides that the above Adminis-
trative Officers shall report to the "State
Board of Eugenics" (that is report to them-
selves) all persons who they think PROBA-
BLY come under the law.
Sec. 87 provides in substance, that they
shall then examine into "the innate traits, the
mental and physical conditions, the personal
records, and the family traits and histories,
of all persons so reported as far as the same
can be ascertained."
The Board has power to summon wit-
nesses.
To administer oaths.
To DETERMINE "IF IN THE JUDG-
MENT" of a majority of said Boa;rd pro-
creation by any such person would produce
children with an inherited TENDENCY to
feeble-mindedness, insanity, epilepsy, crim-
inality and degeneracy, — or if the physical
or mental conditions of any such person will
be substantially improved thereby — then it
shall be the duty of said Board TO MAKE
AN ORDER DIRECTING THE STATE
HEALTH OFFICER TO PERFORM OR
CAUSE TO BE PERFORMED UPON
SUCH PERSON SUCH A TYPE OF
STERILIZATION AS MAY BE
DEEMED BEST BY SAID BOARD. Sec.
88 — and no person shall be "Emasculated"
under the authority of this act except that
such operation shall be found to be neces-
sary to improve the physical, mental, neural
or psychic condition of such person. Such
person shall be served with a copy of the
written findings and orders of said board.
The person then has a right to an appeal
to the Circuit Court. If no appeal is taken
in 15 days the operation SHALL be per-
formed. Sec. 91 provides that upon appeal
"the trial shall be a trial de novo at law as
provided by the Statutes" of the S'ate for
trials of actions at law.''
Trial de novo means "A new; a fresh; a
second time," in other words a second trial.
"To constitute a delegation to a ministerial
officer of judicial powers, it is not necessary
that the adjudication be conclusive of the
rights of the parties put in issue; but if the
officer is clothed with the power of adjud-
icating on and protecting the rights and in-
terests of contending parties and the adjudi-
cation involves the construction and applica-
tion of the law and effects the rights and
interests of the parties, although not finally
determining the rights it is a judicial pro
reeding, or the exercise of a judicial func
tion."— 6 R. C. L. Page 172.
Now to apply the above formally ic the
matter under discussion:
1. The contending parties are the state
and the person reported upon.
2. The Board is clothed with the power
"to protect the rights of the parties; and for
this purpose may summon witnesses and
examine them under oath.
3. The Board construes the law as to
what kind of an operation shall be per-
formed, and applies it as to whether th'
person is subject to it or not.
Detailed Review of Litigation — Oregon
279
The writer is not unmindful tliat there are
decisions which hold that administrative
boards have the right to "determine a fact''
and that then the law operates independent
of the administrative board as to the conse-
quences following the ascertainment of the
facts. In the Act under discussion the board
not only ascertains a fact but then deter-
mines "what form of operation is best" and
orders that it shall be carried out.
The state board of Eugenics is given
power under the act of determining who
will "probably" (Sec. 86) come under the
provisions of the classification. Then after
ascertaining this fact (that is if ascertaining
the probability of a thing is ascertaining a
fact) they are vested with the further dis-
cretionary power ("if in the judgment Sec.
87") of construing the law; i. e., of deciding
what kind of operation is to be performed
("such a type of sterilization as may be
deemed best by said board.") It is analo-
gous to the proposition that if a board were
to have power to determine if a certain per-
son probably came within the class of say
vagrants, and further deciding (such a type
of imprisonment as may be deemed best by
said board) imprisonment for one day,' or
one year.
If a board composed of administrative
officers can determine that a person's classi-
fication is so and so; and further can assess
a punishment to this type or that, in their
discretion, then what are our Courts for? If
this is not using judicial power, what is it?
Ho Bifflit of Appeal to tlie Supreme Court.
As this is a special proceeding — neither
civil nor criminal — there is grave doubt as
to the right of an appeal to the Supreme
Court, in fact the framers of the act .would
not have allowed an appeal to this Court
if they could have helped it — but they were
afraid to go that far j^st yet.
As to right of appeals — from boards, —
Smith Securities Co. vs., Mult. County, 98
Ore. 419.
Demurrer.
The act does not provide for any proced-
ure in the Circuit Court, so Sec. 3 L: O. L.
applies; which provides the "Means to be
used by Court to execute its Povvers, " there-
fore a demurrer herein is proper.
Latest enactment.
Chapter 279, 1917 S. L. attempted to legis-
late upon the same subject, but this present
law Chapter 264, 1919, S. L. is the later law,
and by implication and time supersedes and
repeals the older law.
IN CONCLUSION
The greatest menace to the liberty of the
American people, today, is the assumption of
power, by boards and commissions, that is
absolutely unwarranted under our Constitu-
tion. An open enemy we can fight — usur-
pation of Judicial functions by commission-
ers and boards, with their arbitrary deci-
sions, is the fear of every lover and student
of our Constitution. We are fast becoming
a government by functionaries, rather than
a government by laws.
I respectfully submit to your Honor, that
the Demiirrer herein should be sustained.
(Signed) TOM GARLAND,
Attorney for Jacob Cline.
c. Points and authorities.
IN THE CIRCUIT COURT OF THE
STATE OF OREGON, FOR THE
COUNTY OF MARION.
Department' No. 1.
State Board of Eugenics,) BRIEF IN
Plaintiflf, 1 SUPPORT OF
vs. [DEFENDANT'S
Jacob Cline, DEMURRER.
Defendant..
Points and Authorities.
I.
That Sections 8448 to 8459, both inclusive,
Oregon Laws, are unconstitutional and void
as class legislation.
14th Amendment of the Constitution of
the U. S.
Article 1, Section 20, Constitution of Ore-
gon.
Smith vs. Board of Examiners, 85NJL 47.
Mickle vs. Henrichs, 262 Fed. Rep. 688.
Haynes vs. Williams 166 N. W. 938-L.R.A.
1918 D. 233, 6 R. C. L. Page 383, Sec. 375.
Osborn vs. Thomson, 169 N. Y. S. 638.
State vs. Goodhue, 63 Ore. 117.
Altschul vs. State 73 Ore. 591.
Jdeal Tea Co. vs. Salem, 77 Ore. 182.
Sterett et al .vs. Portland, 79 Ore, 260, 272.
Chan Sing vs. Astoria, 79 Ore. .411.
Monroe vs. Whitycombe, 84 Ore, 328.
II. ,: : - -
That the above referred to sections,- Ore-
gon Laws, are unconstitutional and void in
that they constitute and provide for cruel
and unusual punishment.
Article 1, Section 16, Constitution of Ore-
gon.
Davis vs. Berry, 216 Fed. Rep. 413.
Mickle vs. Henrichs, 262 Fed. Rep. 687,
Osborn vs. Thompson, 169 N. Y. S. 638.
280
DfiTAiLBD Review of Litigation — Oregon
III.
That the above referred to sections, Ore-
gon Laws, are unconstitutional and void in
that they violate the constitutional require-
ment that no Court shall be secret, but jus-
tice shall be administered openly and without
purchase, completely and without delay and
that in all criminal prosecutions, the accused
shall have the right to public trial by an im-
partial jury, in the county in which the
offense shall have been committed, to be
heard by himself and counsel, to demand the
nature and cause of the accusation against
him, and to have a copy thereof; to meet
the witnesses face to face, and to have com-
pulsory process for obtaining witnesses in
his favor. — ^^Art. 1, Sec. 10 and 11, Constitu-
tion of Oregon. Davis vs. Berry, 216 Fed.
Rep. 41,S.
IV.
That the above referred to sections, Ore-
gon Laws, are unconstitutional and void in
that they constitu'e and provide for a bill
of Attainder and a Bill of Pains and Penal-
ties.— Art. 1, Sec. 9, Constitution of the U.
S. Art. 1. Sec. 25, Constitution of Oregon.
Davis vs. Berry, 216 Fed. Rep. 413.
Note: The case of Davis vs. Berry, supra,
was reversed by the Supreme Court of the
United States January 15, 1917, without ref-
erence to the merits of the case, for the
reason, as announced by the Chief Justice,
that the original state enactment appealed
from had meanwhile been repealed by the
Iowa State Legislature and that the case had
become moot for that reason, the Court di-
rected that the case be reversed and re-
manded, with directions to dismiss the bill
without costs. — Berry et al vs. Davis 242 V.
S. 468.
ARGUMENT.
1. Class Legislation.
The Legislature in 1917 enacted a law, now
codified, 2887 to 2898, both inclusive, Oregon
Laws, which provided in substance for the
establishment and personnel of a Sta'e Board
of Eugenics; for the report of the Superin-
tendent of the Oregon State Hospital, the
Superintendent of the State Ins'itution for
Feeble-Minded and the Superintendent of the
Oregon Stat^ Penitentiary, to the State
Board of Eugenics, of certain persons wi'hin
these state institutions who are per.eons po-
tential to producing offspring who would
probably become a social menace or ward
of the State; for the sterilization of habitual
criminals and for the details of administra-
tion of the said Board of Eugenics, covering
the procedure necessary to effect a perfor-
mance of surgical operations on the said sub-
jects of the enactment; the enactment also
defined who shall come within the operation
of this law, therein defining criminals and
moral degenerates; providing that the act
applies to males and females alike.
This law, so patently unconstitutional as
contravening the proscription against class
legislation, in that it applied only to inmates
of state institutions, was somewhat doctored
up and patched up and the attempt was
made to supply the missing supports, in or-
der to safely and effectively execute the pur-
poses of this measure, by the enactment of
a similar law by the 1919 Legislature. This
latter enactment is now codified as Sections
8448 to 8459, both inclusive, Oregon Laws,
and an inspection of the latter enactment
discloses:
I. In Section 8449, the addition of the
State Health Officer to the several superin-
tendents of Oregon state institutions, as ?.
member of the Board of Eugenics. This
State Health Officer doubtless was added in
order that he might cover all persons living
in the State of Oregon outside of the men-
tioned state institutions. Section 8458 shows
the same attempt to pa'ch up the manifestly
unconstitutional enactment of 1917. by stat-
ing that "the provisions of the foregoing ten
sections of this act shall apply to all per-
sons within the State of Oregon " But,
the zealous guardian of the people's destiny,
who framed this legislation, forgot in his
haste to sufliciently befog his true purposes,
by disclosing in other sections that what was
really intended was what the 1917 enactment
expressly declared, namely, operations on
persons presently held in Oregon state in-
stitutions. The examination of Section 8456
is all that is necessary to show that this
is true. This section states that "upon the
receipt of the order from the State Board
of Eugenics, provided for in Sec. 8450, the
Superintendent of the institution to which it
is directed shall, after the time for appeal
has expired, or in case of appeal, upon enter-
ing of a judgment affirming the order of the
Board, and it is hereby made his lawful
duty, to perform, or cause to be performed,
such surgical operation as may be specified
in the order of the S'ate Board of Eugenics.
All such operations shall be performed with
a due regard for the physical condition of
the inmate and in a safe and humane man-
ner."
Detailed Review of Litigation — Oregon
281
The closest inspection of the 1919 enact-
ment fails to disclose any provision for, or
the modus operandi, taking aiiy person in
the State of Oregon, not an inmate of an
Oregon institution, into custody for the sur-
gical operation so necessary to preserve the
race. How does the private citizen come
into confinement and under the authoritjr of
the Board of Eugenics for this operation?
It was never intended by the framers of this
legislation that a person outside of an Ore-
gon State institution should be the object of
the State's beneficence.
But, granting, for the sake of argument,
that the law, as it stands, does provide for
and cover the entire population of this State,
the logical conclusions which must be drawn
immediately disclose the utter viciousness of
such class legislation. What constitutional
power is this that thus permits the State
Health Officer to arbitrarily single out John
Doe and to permit Richard Roe, perhaps
twice as vicious and morally degenerate as
John Doe, to go unscathed? There is no
power nor method prescribed for requiring
the State Health Officer to report to the
State Board of Eugenics any man, no matter
how vicious, unless it suits his whim or
caprice. Should fifteen days from the date
of the secret or closed session and findings
of the Board go by before John Doe appeals
from the mandate of the Board, then what
power can prevent his suflfering an irremed-
iable and final damage? Surely this places
more arbitrary power in the hands of any
one man than any other piece of legislation
that has ever been foisted upon an unsuspect-
ing people, under the guise of the police
power.
This is class legislation of the most re-
volutionary character, for here the class to
be affected is not even defined by the Legis-
lature, but left to the arbitrary whim of an
appointive administrative officer. For in-
stance, this officer could order castrated all
baldheaded degenerates, and leave the rest
without competition, and still no remedy
would exist, for there is no way to compel
such officer to report any particular person
to the Board. — See Beveridge vs. Lewis, 67
Pac. Rep. 1040.
Another fatal element which is patently
class discrimination is found in Section 8451.
Here the law says " and no person
shall be emasculated under the authority of
this act except that such operation shall be
found necessary to improve the physical,
mental, neural or psychic condition of such
person." Emasculation, by every authority
known, means castration, and cannot be held
to include any other than male persons. This
is discriminatory and class legislation.
II. Cruel and Unusual Punishment.
Defendant contends that the enactment
provides for a law which is both cruel and
unusual, contrary to our organic law. Num-
erous cases have sustained this position. It
will be noted in the case of Osborn vs.
Thomson, 169 N. Y. S. 638, in which case
the Court has, fortunately, set out at length
the testimony of the doctors called before
the Court in the hearing of this cause, that
the doctors uniformly testified to the falsity
of hope placed in the operation known as
vasectomy. They urged that castration is
the onlv certain operation to be performed
on the male to realize the ends sought.
Medical history is replete with instances and
records of the deleterious and destructive
efifects resulting from this operation. The
whole soma changes, enthusiasm, interest in
life, the will to sustain position sufficient to
make a living, is undermined; mental
changes soon occur and the robbing of these
or any other glands is permanently and ir-
reparably harmful to the loser.
"No one can doubt but that under our
present civilization, if castration were to be
adopted as a mode of punishment for any
criminal, all minds would so revolt that all
Courts without hesitation would declare it
to be a cruel and unusual punishment. As
we understand it, castration was never in-
flicted after the Revolution of 1688. So that
if, as some now contend, it is now competent
for a Legislature to impose such punishment
as existed by the common law, the validity
of the statute providing for castration could
not be upheld because that punishment was
one imposed back of the time of the common
law as, generally speaking, it comes down
to us." — Davis vs. Berry, 216 Fed. Rep. 417.
Whatever may be said as to vasectomy
being a minor matter so far as the immediate
pain and immediate effect of the operation
is concerned, it cannot be denied that grave
and serious consequences result because of it.
a. " that a careful and scientific
study of ductless glands and theiil secretions
shows that when such secretions forming in
the body are interfered with, that physiolog-
ical teaching indicates that conditions are
created which affect the brain and the nerv-
ous system; — "
282
DfiTAiLfiD Review of Litigation — Oregon
b. " that when such operations have
been done against the will of the patient the
psychic effects have been bad; "
c. " Dr. Coakley, a specialist in vivi-
section, testified as to the danger of infection
because of the retained secretions in the
body " — Osborn vs. Thomson, 169 N.
Y. C. 641.
It will doubtless be conceded that the
operation of vasectomy is of itself a matter
of minor' consequence, but the like operation
performed on the female, known as salpin-
gectomy, is serious in its character, requiring
an anaesthesia, an abdominal section and
the risks incident thereto. It will be seen
from Section 8450 that the State Board of
Eugenics is duty bound to make an order
directing the State Health Officfer to perform
or cause to be performed upon such person
such a type of sterilization as may be deemed
best by said Board.
"The statute is broad enough to authorize
an operation for the removal of any one (in
the female) of these three organs, that is,
the ovary, the Fallopian tube and the uterus,
which are essential to procreation." — Os-
born vs. Thomson, 169 N. Y. S. 643.
Surely, then. Salpingectomy, a major
operation, and castration, both so far-reach-
ing in physical and mental and moral effect,
are dangerous and cruel and unusual punish-
ments.
III. and IV. Due Process of Law; Bill of
Attainder and Bill of Pains and Penalties.
In view of the able manner in which our
contentions in these regards are set out in
Davis vs. Berry, 216 Fed. Rep. 413, we deem
more than passing comment an affront to
the intelligence of the Court, and altogether
unnecessary. Suffice it to say that the 1919
enactment, attacked herein, provides for so
elastic a procedure, so loosely confined to the
established practices of determining issues
under the American system of government
that it contravenes the controlling spirit of
"due process of law," as wc understand it.
No opportunity is given the accused to face
his accusers. There is no inibiic trial; cer-
tainly there is no impartial jury. The hear-
ing is not had before the accused nor is he
represented by counsel. His right "to demand
the nature and cause of the accusation against
him and to have a copy thereof" is shelved
until after the Board has reached its findings.
And as to meeting the witnesses face to
face, and as to having compulsory process
for obtaining witnesses in his favor, these
requirements seem to have been altogether
forgotten by the framers of this bill, to
whom selective breeding means more than
our Constitution.
A Bill of Attainder has been defined as a
legislative act which inflicts punishment
without a jury trial. — The Federalist, No. 44
by Madison, Watson Const. 733-738.
Section 8451 tells us that the deprivation
and forcible ravishment of the genital organs
of the male or female, as the case may be,
is not in any manner a punitive measure.
This is sweet sop to all save the victim of
the surgeon's knife. He knows what has
happened to him and that it is a punishment.
In Section 8457, we note that the additional
punishment, namely, sterilization by vasec-
tomy, salpingectomy, castration or some
other violent and dangerous operation shall
be awarded any person
fl) who has been committed and is an in-
mate of any institution for feeble-
minded or hospital for insane, main
tained by the State of Oregon,
(2) or is a criminal who has been ccm-
victed three or more times of a felony
in the courts of any state and sen-
tenced to serve in the penitentiary
therefor, or
(3) is a moral degenerate or sexual per-
vert who is addicted to the" practice of
sodomy or the crime against nature,
or to other gross, bestial or perverted
sexual habits and practices prohibited
by statute,
because such incarceration, commitment or
addiction is arbitrarily made by statute prima
facia evidence that procreation by any such
person would produce children with an in-
herited tendency to feeble-mindedness, in-
sanity, epilepsy, criminality or degeneracy.
The mere fact that the framers of this act
stamped the enactment "not punitive'' does
not efface and destroy its punitive effect.
"A rose by any other name would smell as
sweet." The clause in the Constitution pro-
hibiting Bills of Attainder includes Bills of
Pains and Penalties. — Story Const, Sec. 1338.
Hare Am. Const. L. 549. Cummings vs.
Missouri, 4 Wall. (U. S.) 323.
Respectfully submitted,
(Signed) SMITH & SHIELDS
ALLAN BYNON.
Amicus Curiae.
Dbitahud Review ot Litigation — Oregon
283
d. Answering brief of plaintiff.
IN THE CIRCUIT COURT OF THE
STATE OF OREGON FOR THE
COUNTY OF MARION.
State Board of Eugenics, '
Plaintiff
•No. 15,442
ANSWERING
BRIEF OF
PLAINTIFF
AGAINST DE-
Jacob Cline, MURRER OF
Defendant. DEFENDANT.
Of the various grounds suggested by the
defendant in support of demurrer, relative
to the constitutionality of sections 85 to 96,
inclusive, of chapter 264, Laws of 1919, there
appears the objection that the title of the
act is defective. The part of the title relating
expressly to that part of the health code
under consideration in this case reads as
follows :
"Providing the powers and duties of the
State Board of Health and for the establish-
ment of a State Board of Eugenics, and their
powers and duties; providing for sterilization
of certain classes and for appeal from the
orders of the State Board of Health and'
State Board of Eugenics in relation thereto,
and appointment of attorneys to defend cer-
tain cases, defining moral degenerates and
sexual perverts."
A cursory examination of the title to said
chapter discloses an attempt to index the
various provisions of a' health code, which,
of course, is unnecessary, it having been
held In Re Willowcreek, 74 Or. 615, that
"It is sufficient if the general subject of
the act be contained in the title and is a
fair index to the legislative purposes, and if
all the provisions of the act are germane to
such subject and do not relate to matters
wholly foreign thereto."
It should not, however, be held that this
title is S9 imperfect as to render the act un-
constitutional merely because of its undue
length. Considered as a whole it is a fair
index to the legislative purpose, and the
provisions of the act are germane to it. The
matters in the bill are essentially health
measures and all pertain to a health code;
an examination of them will show that they
are not incongruous or representative of
diverse interests.
"The history and object of this constitu-
tional provision, and the mischief against
which it was aimed should be kept steadily
in view by the courts in its construction and
application. It was intended to prevent the
practice, common in legislative bodies not
thus restricted, of embracing in the bill
matters having no relation to each other,
wholly incongruous, and of which the title
gives no notice, thus securing the adoption
of measures by fraud and without attracting
attention; or combining subjects represent-
ing diverse interests, in order to unite the
members of the legislature who favored
either in support of all. These combinations
being corruptive of the legislature and dan-
gerous to the state, are prohibited in most,
if not all, the states by constitutional pro-
vision similar to ours. This provision was
not designed to embarrass legislation, but
to put an end to legislation of the vicious
character referred to, and has been always
liberally construed to sustain legislation
not within the mischief." — State vs. Shaw,
22 Or. 288.
The unconstitutionality of the act is urged
on the further ground that it denies to the
class to which defendant belongs equal pro-
tection of the laws afforded under the Four-
teenth Amendment of the Constitution of the
United States, and Article I, Section 30 of
the constitution of the 'State of Oregon, be-
cause the act arbitrarily classifies insane,
epileptics, criminals and degenerates as the
only types, the elimination of which would
decrease the number of state dependents and
charges. '
These are not precisely the classifications
made by the act as an examination of section
86 will disclose. That section reads as fol-
lows :
"It shall be, and it is hereby declared, the
duty of the superintendent of the Oregon
State Hospital, the superintendent of the
Eastern Oregon state hospital, the super-
intendent of the state institution for feeble-
minded, and the superintendent of the
Oregon state penitentiary and the state
health officer to report quarterly on the first
of January, April, July and October, to the
state board of eugenics, all feeble-minded,
insane, epileptic, habitual criniinals, moral
degenerates and sexual perverts, who are
persons potential to producing offspring
who, because of inheritance of inferior or
antisocial traits, would probably become a
social menace, or a ward of the state."
In section 88 the purpose of the act is
declared to be for the betterment of the
physical, mental, neural or psychic condition
of the person or to protect society from the
menace of procreation by said person. Inso-
far as its provisions call for sterilization for
the purpose of eliminating hereditary dis-
284
Detailed Review of Litigation — Oregon
abilities, it is of broader effect as to the
persons to whom it applies than as to the
persons upon whom operations for the pur-
pose of emasculation are permitted to be
performed. As to the first, it apparently
seeks protection against a constantly in-
creasing number of state charges, while as
to the latter, its purpose is declared to be
for the improvement of the physical, mental,
neural or psychic condition of the person
operated upon.
The classes of persons to whom the statute
applies are capable of endangering the safety
and morals of the community and ad'ding
greatly to the sum of human suffering. The
classifications are not confined to inmates
of the State institutions, nor made to apply
arbitrarily to the poor to the exclusion of
the rich an3 are not otherwise unreasonably
restricted or limited. Beyond these con-
siderations the courts are not concerned.
The propriety, wisdom and expediency of
legislation is exclusively a legislative ques-
tion.—McCrary vs. U. S., 195 U. S. 27.
Similar laws have been passed by various
states: California and Connecticut in 1909,
Indiana in 1907, New York, Michigan, Kan-
sas, Wisconsin, North Dakota in 1912 and
1913. These acts are in exercise of the
police power to protect the state against the
constantly increasing burden of the support
and maintenance of feeble-minded, insane
and criminal persons. They all proceed upon
the theory that the duty of society to pro-
tect and preserve itself is higher than its
duty to protect and preserve individuals who
are a menace to society and who will pro-
create their own kind.
The constitutionality of statutes passed for
the purpose of protecting the state against
the birth of undesirable citizens by prohibit-
ing' the marriage of a white person to a
negro "and of epileptics under the age of
forty-five have been upheld. — Lonas v. State,
3 Heisk (Tenn.) 2S7; State v. Gibson, 30
Ind. 389; Gould v. Gould, 78 Conn. 242.
Tn the case of Gould v. Gould the classifi-
cation in a statute prohibiting marriage in
certain cases of epileptics was considered by
the court as follows:
"One mode of guarding against the per-
petuation of epilepsy obviously is to forbid
sexual intercourse with those afflicted by it,
and to preclude such opportunities for sexual
intercourse as marriage furnishes. To im-
pose such a restriction upon the right to
contract marriage, if not intrinsically un-
reasonable, is no invasion of the equality
of all men before the law, if it applies equally
to all under the same circumstances who be-
long to a certain class of persons, which class
can reasonably be regarded as one requiring
special legislation either for their protection
or for the protection from them of the com-
munity at 'large. Tt cannot be pronounced
by the judiciary to be intrinsically un-
reasonable, if it should be regarded as a
determination by the General Assembly that
a law of this kind is necessary for the preser-
vation of public health, and if there are sub-
stantial grounds for believing that such
determination is supported by the facts upon
which it is apparent that it was based.
Holden v. Hardy, 169 U. S. 366. 398; Bissell
V. Davison, 65 Conn. 183, 192. There can be
no doubt as to the opinion of the General
Assembly, nor as to its resting on substantial
foundations. The class of persons to whom
the statute applies in not one arbitrarily
formed to suit its purpose. It is certain and
definite. It is a class capable of endangering
the health of families and adding" greatly to
the sum of human offspring. Between the
members of this class there is no discrimina-
tion, and the prohibitions of the statute
cease to operate when, b3'^ the attainment of
a certain age by one of those whom it af-
fects, the occasion for the restriction is
deemed to become less imperative."
The right of the state to inflict physical
injury on individuals for the protection of
society has been upheld authoritatively in
cases relating to statutes requiring com-
pulsory vaccination.
Morris v. Columbus. 102 Georgia 792;
Jacobson vs. Massachusetts, 197 U. Sv 11.
The decision in Morris v, Columbus, supra,
is particularly interesting in its discussion
of the right of the state to submerge indi-
vidual rights to public welfare. It reads in
part as follows:
"There can be no question that this is a
reasonable exercise of the power conferred
upon the city authorities by the legislature.
With the wisdom or policy of vaccination the
courts have nothing to do. We do not pro-
pose to enter into a discussion as to whether
or not it is a preventive of smallpox. That
question is not proper subject-matter for
review by the courts. The legislature has
seen fit to adopt the opinion of those scien-
tists who insist that it is efficacious, and this
is conclusive upon us. Our only province is
to see that none of the rights guaranteed to
the plaintiffs in error by, the fundamental law
are infringed. 'What is for the public good,
Detailed Review oe Litigation — Oregon
285
and what are public purposes, and what does
properly constitute a public burden, are
questions which the legislature must decide
upon its own judgment, and in respect to
which it is vested with a large discretion
which cannot be controlled by the courts,
except, perhaps, where its action is clearly
evasive, and where, under pretense of law-
ful authority, it has assumed to exercise one
that is unlawful.' Cooky's Const. Lim. 155.
See also Powell v. Pa., 127 U. S. 678. No
law which infringes any of the natural rights
of man can long be enforced. Under our
system of government the remedy of the
people, in that class of cases where the
courts are not authorized to interfere, is in
the ballot-box. ,Any law which~violates
reason, and is contrary to the popular con-
ception of right and justice will not remain
in operation for anj' length of time, but
courts have no authority to declare it void
merely because it does not measure up to
their ideas of abstract justice. The motive
which doubtless actuated the legislature in
the passage of the act now under considera-
tion was that vaccination was for the public
good. In this the General Assembly is
sustained by the opinion of a great majority
of the men of medical science both in this
country and in Europe.
"The General Assembly conferred. this au-
thority upon the City of Columbus in the
exercise of its police power, by which, says
Tiedeman, 'State, persons, and property are
subjected to all kinds of restraints and bur-
dens, in order to secure the general comfort,
health, and prosperity of the State.' The
Supreme Court of Illinois has said of this
power that it is 'coextensive with self-pro-
tection, and is not inaptly termed "the law
of overruling necessity." It is that inherent
power in the State, which enables it to pro-
hibit all things hurtful to the comfort and
welfare of society.' Lakeview vs. Rose Hill
Cemetery, 70 111, 192. The Court of Appeals
of New York says: 'The police power ex-
tends to the protection of persons and prop-
erty within the State. In order to secure
that protection they may be subjected to
restraints and burdens by legislative acts.
If the act is a valid and reasonable exercise
of the police power of the State, then it must
be submitted to, as a measure designed for
the protection of the public and to secure
it against some danger, real or anticipated,
from a state of things which modifications
in our social or commercial life have brought
about. The natural right to life, liberty, and
the pursuit of happiness is not an absolute
right. It must yield whenever the conces-
sion is demanded by the welfare, health, or
prosperity of the State. The individual must
sacrifice his particular interest or desires, if
the sacrifice is a necessary one, in order that
organized society as a whole shall be bene-
fited.'— People vs. Warden of City Prison,
39 N. E. Rep. 686."
The brief of defendant quotes at length
from an opinion by the Supreme Court of
New Jersey in which a eugenics measure of
' that state was declared unconstitutional in
an attempted application to an inmate of a
hospital for epileptics maintained by the
state. The analysis of that case (S'mith vs.
Board of Examiners, 88 Atl. 963) discloses
that the New Jersey Statute was essentially
different in its classification than the Oregon
act in that its application was confined to
feeble-minded, epileptic, criminal and defect-
ive persons confined in reformatories, 'char-
itable and penal institutions maintained by
the public. This restriction to the inmates
of public institutions was the sole ground
stated by the court as a basis of its decision
as may be observed from that part of the
decision which reads as follows:
"Turning our attention now to the classi-
fication on which the present statute is
based, and laying aside criminals and per-
sons confined in penal institutions with
which we have no present concern, it will
be seen that — as to epileptics, with which
alone we have to do — the force of the statute
falls wholly upon such epileptics as are 'in-
mates confined in the several charitable in-
stitutions in the counties and state.' It must
be app'J.rent that the class thus selected is
singularly narrow when the broad, purpose
of the statute and the avowed object sought
to be accomplished by it are considered.
The objection, however, is not that the class
is small as compared with the magnitude of
the purpose in view, which is nothing less
than the artificial improvement of society at
large, but that it is singularly inept for the
accomplishment of that purpose in this re-
spect, viz., that if such object requires the
sterilization of the class so selected, then a
fortiorari does it require the sterilization of
the vastly greater class who are not pro-
tected from procreation by their confinement
in state or county institutions. * * *
'"The conclusion we have reached is that
without regard to the power of the state
to subject its citizens to surgical operations
that shall render procreation by them im-
286
DETAiLED Review of Litigation — Oregon
possible the present statute is invalid, in that
it denies to the prosecutrix of this writ the
equal protection of the laws to which, under
the Constitution of the United States, she is
entitled."
The defendant raises the further objection
that the duties imposed upon the State
Board of Eugenics require said board to
exercise judicial functions, that because sec-
tion 87 provides that the board shall exam-
ine into the innate traits, the mental and
physical condition, the personal record and
the family traits and histories of all persons
so reported, and make an order directing the
Board of Health to perform or cause to be
performed upon any person who is deemed
by the board to be within the scope of the
act, such type of operation as may be con-
sidered best by the board, that thereby the.
board is vested with judicial powers.
The case in re Willowcreek, 74 Ore. 615,
cited by defendant's brief, is most decidedly
against the conclusion drawn by the defen-
dant. In that case it was contended that
the act of 1909, known as the Water Code,
was a violation of section 1, Article 7 of
the state constitution in that it undertook to
vest judicial power in a tribunal and officers
not recognized by the constitution. The
supreme court of this state, in passing upon
said question, used the following language:
"The statute prescribing the duties to be
performed by the water board and its mem-
bers in their respective official capacities in
a determination of water rights does not
confer judicial powers or duties upon the
board or such officers in any sense as in-
dicated by the constitution. Their duties are
executive or administrative in their nature.
In proceedings under the statute the board is
not authorized to make determinations
which, are final in character. Their findings
and orders are prima facie final and binding
until changed in some proper proceeding.
The findings of the board are advisory
rather than authoritative. It is only when
the courts of the state have obtained juris-
diction of the subject-matter and of the per-
sons interested and rendered a decree in the
matter determining such righs that, strictly
speaking, an adjudication or final determina-
tion is made. It might be said that the
duties of the water board arc quasi judicial
in their character. Such duties may be de-
volved by law on boards whose principal
duties are administrative. As said in Rcetz
vs. Michigan, 188 U. S. 50.5, 507, 83 Supt.
Ct. 390, 391 (47 L. ed. 563): 'Indeed, it not
infrequently happens that a full discharge of
their duties compels boards, or officers of a
purely ministerial character, to consider and'
determine questions of a legal nature. Due
process is not necessarily judicial process."
Many executive officers, even those com-
monly known as purely administrative offi-
cers, act judicially in the performance of
their official duties, and in so doing do not
exercise judicial powers as the words are
commonly used and as they are used in the
organic act in conferring judicial powers
upon specified tribunals. State vs. Corvallis
& E. R. R. 59 Ore. 450, 117 Pac. 980; Pat-
terson vs. N. W. Co. 170 111. Ap. 501, 511;
People vs. Hasbrouck, 11 Utah 291, 39 Pac
918. In Washington the public utilities acl
was held not to confer judicial or legislative
powers upon administrative officers. State
vs. Superior Court, 67 Wash. 37, 120 Pac.
861, Ann. Cas. 1913 D, 78. In Wisconsin
the industrial commission was held to be an
administrative body, the court saying: 'It is
an administrative body or arm of the gov-
ernment, which in the course of its adminis-
tration of a law is empowered to ascertain
some questions of fact and apply the exist-
ing law thereto, and in so doing acts quasi
judicially; but it is not thereby vested with
judical power in the constitutional sense.'
Borgnis vs. Falk Co. 147 Wis. 358, 133 N.
W. 219, 37 L. R. A. (X. S.) 489. See
Stettler vs. O'Hara, 139 Pac. 743. The
duties of the Board of Control are similar to
those of a referee appointed by the court.
The powers and duties of the three principal
divisions of the state government, legislative,
executive and judicial, are necessarily some-
times blended to a limited extent. Tfie pre-
servation of lines between them is the fun-
damental idea in the organic act, and the
continuance of regulated liberty depends or
maintaining these boundaries. Willoughbj
on the Constitution, vol. 2, Sec. 742; Biggs
vs. McBride. 17 Ore. 640, 648, 21 Pac. 878,
5 L. R. .X, 115. Delegation of powers to
boards or commissions has generally been
sustained by the courts throughout the coun-
try. O. R. & N. Co. vs. Campbell (C. C.)
173 Fed. !i-.7; Portland Ry. L, & P. Co. vs.
Railroad Commission, 56 Ore. 468, 105 Pac.
709, 109 Pac. 273. The separation of the
powers, both state and national, has not
been complete. The practical necessities of
efficient government prevent a complete de-
fined division, It has been necessary to vest
in each department certain powers which
primarily should not belong to it. Courts
DetaiIvKd Review oif Litigation — Oregon
287
establish rules of practice to govern pro-
cedure therein, and thereby in a certain
sense exercise legislative functions; they ap-
point officers, in reality executive acts.
Courts have no hesitation in performing
ministerial acts if such are incidental to the
exercise of their proper judicial functions.
Legislation of recent years creating com-
missions for various purposes such as regu-
lating rates of public utilities is a familiar
instance of the overlapping of governmental
functions. In many respects these acts pro-
vide for the performance of duties by ad-
ministrative boards judicial in their nature
or quasi judicial."
In State, ex. rel. vs. Hawkins, 44 Ohio
State, 98, it is said:
"What is judicial power cannot be brought
within the ring-fence of a definition. It is
undoubtedly power to hear and determine,
but this is not peculiar to the judicial office.
Many of the acts of administrative and exec-
utive officers involve the exercise of the
same power.''
In conclusion, it may be urged that the
presumption is in favor of the constitution-
ality of the act. It has been held by the
Supreme Court of this state, as well as by
the Supreme Court of every state in the
Union, and also by the Supreme Court of
the United States, that every act is presumed
to be constitutional until the contrary has
been shown beyond a reasonable doubt. In
other words, where reasonable minds might
differ as to the constitutionality of an act,
the doubt is resolved in favor of its con-
stitutionality. In State vs. Cochran, 55 Ore.
157, Mr. Justice McBride refers to the pre-
sumption above stated as follows:
"In conclusion we will add that under any
point of view it is manifest, from the various
constructions placed by eminent counsel
upon Article VII, however different they
may be, in view of the legislative in'erpre-
tation thereof, that, under light most un-
favorable to the act in question, no one can
say the constitution is free from ambigu'ty
on the subject, or that such act under con-
sideration is beyond a rational doubt uncon-
stitutional. Placed therefore under the most
damaging scrutiny possible, there is no es-
cape from the conclusion that the legislative
assembly did not, in the enac'ment of the
law in question, exceed its constitutional
powers. To hold otherwise would be to
disregard, as hereinbefore disclosed, the
well-settled rules of construction heretofore
promulgated by an unbroken line of deci-
sions by this court from the earliest history
of our State."
Mr. Justice. Eakin, in delivering a con-
curring opinion, said:
"The Legislature has all power not taken
away by the constitution. Before a statute
is declared unconstitutional, its repugnancy
should be clear and free from doubt. In
Simon vs. Northrup, 27 Ore. 495, (40 Pac.
561; 30 L. R. A. 171), Mr. Chief Justice
Bean says:
" 'The courts will never exercise the extra-
ordinary power of declaring an act of the
Legislature unconstitutional unless there is
a plain, palpable, and clear conflict between
the statute and the constitution.' In re Wel-
Hngton, 16 Pick. (Mass.) 87, (26 Am. Dec.
631), In Sinking Fund Cases, 99 U. S. 718
(25 L. ed. 496) it is said; 'Every possible
presumption is in favor of the validity of
a statute, and this continues until the con-
trary is shown beyond a rational doubt.
One branch of the government cannot en-
croach on the domain of another without
danger. The" safety of our institutions de-
pends in no small degree on a strict observ-
ance of this salutary rule.' Every doubt
must be resolved in favor of the legislative
act. Every intendment must be given in
favor of its constitutionality, and we are not
justified in holding that the legislative act,
increasing the number of justices of the
Supreme Court to five is unconstitutional."
On the same subject see the following
cases:
Libby vs. Olcott, 66 Ore. 124.
State vs. Standard Oil Co. 61 Ore. 438,
at 449.
Pac. Elevator Co. vs. Portland, 65 Ore.
349, at 384.
In re Willow Creek, 144 Pac. 505.
Respectfully submitted.
.'Attorneys for Plaintiff.
e. Opinion of Percy R. Kelly and Geo. G.
Bingham, Judges.
IN THE CIRCUIT COURT OF THE
STATE OF OREGON FOR
)iIARION COUNTY.
Department No. 1.
State Board of Eugenics,
In re Jacob Cline.
This proceeding arises because of the
action of the State Board of Eugenics direct-
ing an operation sterilizing Jacob Cline by
emasculation. Following this action, Mr.
Tom Garland in behalf of Cline, by a letter
288
Detailed Review of Litigation — Oregon
to the Secretary of the Board, caused the
filing herein of a transcript of the proceed-
ings of the Board. The questions confront-
ing us have been heard upon a demurrer
in behalf of Cline to the action of this
Board.
It is urged by counsel for Cline, and by
a brief filed by Messrs. Allan Bynon and
Smith & Shields, attorneys, as amici curiae,
that various provisions of the state and fed-
eral constitutions have been violated by the
statute upon which the action of the Board
is predicated.
Two statutes upon the subject have been
enacted in this state, and appear in the codi-
fication of Oregon Laws for 1920. The first
was passed in 1917, being Chapter 379 of
1917 Session Laws, and Sections 3887 to
3898 inclusive of Oregon Laws. The second
was passed in 1919, being Sections 85 to 96
inclusive of Chapter 264 of 1919 Session
Laws and Sections 8448 to 8459 inclusive,
Oregon Laws.
We are of the opinion that the 1917
Statute is unconstitutional because it clearly
violates the provisions of the state and fed-
eral constitution prohibiting class legislation,
for the reason that it is confined in its
operation to the inmates of certain state
institutions. In our opinion, the enactment
of the latter statute constitutes legislative
construction of the former supporting this
view.
We cannot concur in the suggestion that
the la;tter statute is unconstitutional as un-
waranted class legislation or as providing for
cruel and unusual punishment.
We are convinced, however, that the latter
statute is unconstitutional because it violates
the clause of Section 1 of the 11th Amend-
ment of the U. S. Constitution providing
that ''no state shall deprive' any person of
life, liberty or property without due process
of law."
Judge Field has construed the term, lift,
as here used, saying that it means some-
thing more than mere animal existence.
"The inhibition against its deprivation," he
says, "extends to all those limbs and facul-
ties by which life is enjoyed. The depriva-
tion, not only of life, but of whatever God
has given to everyone with life, for its
growth and enjoyment is prohibited by the
provision in question." Munn vs. Illinois
94 U. S. 113 at 142. Following this con-
struction of the term thus employed in the
constitutional provision mentioned, clearly
the operation proposed her»in would con-
stitute deprivation of life.
Judge Cooley'has said that: "Due process
of law in each particular case means such
an exertion of the powers of government
as the settled maxims of law permit and
sanction and under such safeguards for the
protection of individual rights as thost
maxims prescribe for the class of cases to
which the one in question belongs." Cooley
Const. Lim. Sec. 356.
Unquestionably this case belongs to the
class requiring strict rules of procedure foi
it is in the class providing the direct con
sequences, namely: deprivation of life. Ir
such cases, the settled maxims of law re-
quire the application of the rule of evidence
demanding at every stage of the proceed-
ing, proof beyond a reasonable doubt. The
statute in question, however, beyond declar-
ing that it is not in any manner a punitive
measure, is silent as to the rules of evidence
applicable thereto. It is true that there is
a provision to the efTect that after appeal
the trial shall be a trial de novo at law as
provided by the statutes of the state for the
trial of actions at law; but it nowhere indi-
cates whether it shall be tried as a criminal
action or as a civil action. Besides the rules
of evidence, the method of joining the issues,
the manner of forming the jury, the number
of peremptory challenges, the grounds for
challenges for cause, the number of con-
curring jurors necessary to warrant the re-
turn of a verdict are all uncertain and un-
prescribed. There is no provision for com-
plaint, information or indictment, motion,
demurrer, answer or plea, and none ex-
pressly imposing the affirmative of the issue
upon either party.
The provision that an informal notice of
appeal filed with the secretary of said board
cither by the person or someone in his be-
half shall be all that is necessary to make
the appeal, impresses us as an indication that
the matter should be treated informally and
without the safeguards demanded by the
importance of the issue to be determined.
Moreover, the statute does not state what
court shall entertain an appeal. It merely
states that: ".Any such person * * * may
take an appeal to the circuit court.'' There
are many circuit courts irr the state. No
method is provided by statute for determin-
ing which one is the appellate tribunal in
these cases.
We, realize that if a trial, after due notice,
before an impartial judicial tribunal having
Detailed Review oe Litigation — Oregon
289
competent jurisdiction is provided, even by
way of appeal only, the constitutional guar-
anty is preserved, and that an appeal from
the judgment rendered after such trial, need
not be prescribed; but in a case of such
importance as this, every judicial impulse
inclines to the wisdom of providing for such
an appeal to the highest court of this state.
In a case originating in the justice's court,
provision is made for the formulation of the
issues, for the manner of selecting a jury,
procuring and hearing witnesses, hearing
coimsel, returning a verdict, and entering
judgment; and thirty days are given within
which an appeal may be taken to the Circuit
Court of the county wherein the judgment
is given. In a case originating in or ap-
pealed to the circuit court, though it involves
only a trivial interest in property, the rights
of the parties litigant are similarly pro-
tected and safeguarded and sixty days are
given the litigants within which to appeal
to the Supreme Court; but in the cases
treated by the statute in question, no oppor-
tunity at all is given the person most vitally
affected to make his position known, either
by witnesses, counsel or in person at the
tim.e of the hearing before the Board. Only
fifteen days are given for the exercise of
the right of appeal, and no appeal from the
judgment of the circuit court is expressly
prescribed.
As showing the trend of judicial thought,
we are impressed by the fact that of seven
decided cases uppn statutes providing for
such operations as are contemplated by the
statute under consideration six of these cases
hold the respective statutes unconstitutional.
Davis vs. Berry, 216 Fed. Rep. 417, s. c.
242 U. S. 468.
Osborn vs. Thomson, 169 N. Y. S. 638.
Smith vs. Board of Examiners, 85 N. J.
L. 46; 88 Atl. 963.
Haynes vs. Williams, 166 N. W. 938.
Mickle vs. Henrichs, 262 Fed. Rep. 688.
Williams vs. Smith, 131 N. E. 2.
And the one upholding the law. (State vs.
Feilen, 70 Wash. 65, 126 Pac. 75) is easily
distinguishable from the case at bar because
it construes a statute undeniably punitive,
and one wherein the safeguards of due pro-
cess of law have not been omitted or over-
looked.
Believing that within the adjudicated
meaning of the clause of the 14th Amend-
ment of the U. S. Constitution referred to,
the statute in question, if enforced might
have the effect of depriving any resident of
Oregon of life, and being of the opinion that
it does not provide due process of law as
a safeguard against its unjust and unwar-
ranted enforcement, we hold it unconstitu-
tional and void, insofar as it attempts to
provide for operations of sterilization.
(Signed) PERCY R. KELLY,
(Signed) GEO. G. BINGHAM,
Judges.
f. Decision of the Circuit Court.
IN THE CIRCUIT COURT OF THE
STATE OF OREGON FOR THE
COUNTY OF MARION.'
Department No. 1.
No. 15442,
In the Matter of Jacob Clinel
and V
the State Board of EugenicsJ
The above entitled matter having been
heard upon the above named Jacob Cline's
demurrer to the record filed herein of the
proceedings of said State Board of Eugenics,
the said State Board of Eugenics appearing
by Hon. John H. Carson, its attorney, and
district attorney for Marion County, the said
Jacob Cline appearing by Mr. Tom Garland,
his attorney, and Captain Allan Bynon and
Messrs. Smith & Shields, attorneys at law,
appearing as amici curiae, at which hearing
it was stipulated that written briefs should
be filed and said written briefs having now
been filed,
IT IS ORDERED that said demurrer of
said Jacob Cline to said proceedings of said
State Board of Eugenics be and the same
is hereby sustained;
AND IT IS HEREBY FURTHER OR-
DERED that this proceeding be and the
same is hereby dismissed,
PERCY R. KELLY,
GEO. G. BINGHAM,
Judges.
Filed December 13, 1921.
'Following the decision (December 13, 1921)
of the Circuit Court of the County of Marlon,
the Oregon State Board of Eugenics ordered
an immediate appeal to the State Supreme
Court.
(Quoted from letter) "There has been no
appeal from the judgment of the Circuit Court
of the State of Oregon In the Case of Oregon
State Board of Eugenics vs. Jacob Cline,
(No. 15442), for the reason that the statute of
this state does not authorize an appeal from
the decision of the Circuit Court in this kind
of case." I. H. Van Winkle, Attorney-Gen-
eral. June 23, 1922.
CHAPTER VIII.
CASE AND FAMILY HISTORIES OF INDIVIDUAL SUBJECTS OF
LITIGATION GROWING OUT OF THE SEVERAL EUGENICAL
STERILIZATION LAWS.
Introduction '. . . 291
1. Peter Feilen, moral pervert, Washington 292
2. Alice Smith, epileptic and feeble-minded, New Jersey 292
3. Rudolph Davis, felon, Iowa 304
4. Nora Reynolds, feeble-minded, Michigan 305
5. Frank Osborn, feeble-minded. New York 305
6. Pearley C. Mickle, moral pervert, Nevada - 311
7. Warren Wallace Smith, moral pervert, Indiana 312
8. Jacob Cline, moral pervert, Oregon 318
Case; and Family Historie;s op Individuals
291
INTRODUCTION.
In investigating the institutional and court
records in the matter of case and family
histories, we find that there is a wide varia-
tion in the type of record provided, and also
in the extent of individual case histories, but
most of all a great difference is found in the
quality and extent of the pedigree records.
The investigation finds in the cases of War-
ren Wallace Smith, an inmate of the Re-
formatory at Jeffersonville, Indiana, and of
Alice Smith, an inmate of the New Jersey
State Village for Epileptics at Skillman, who
were the subjects of the test cases in their
respective states, the most complete and
valuable pedigree studies. The first study
was contributed by Dr. A. H. Estabrook of
the Eugenics Record Office, and the second
vras made under the direction of Dr. D. F.
Weeks, Superintendent of the Skillman
Village. These records are commended as
models for executive agents of eugenical
sterilization laws. They are pedigree records
which set forth the family distribution of
natural traits in a manner adequate to the
determination of the hereditary qualities of
the particular individual. If records as com-
plete and scientific as these can be obtained
for individuals nominated for eugenical
sterilization under a statute, there need be no
doubt concerning the principal question of
fact, namely, whether the particular indi-
vidual is, so far as hereditary endowment is
concerned, a potential parent of socially
inadequate offspring.
The importance of providing thorough
pedigree studies before deciding upon the
sterilization of an individual for eugenical
purposes cannot be overestimated. Any
sterilization law which seeks to be eugen-
ically effective must of necessity not only
demand that investigation of the pedigree or
hereditary traits of the individual be made
as the basis for determining upon steriliza-
tion in each particular case, but the statutes
must also provide adequate facilities whereby
its executive agents may secure the desired
facts. •
The Subjects of the Test Cases are as
follows:
Subject of Test Case
State
Test Case, Date and Where
Origmated
1.
Peter Feilen, Moral Pervert
Washington
1911
Superior Court of King Coun-
ty, Seattle, Washington
2,
Alice Smith, Epileptic and
Feeble-minded
New Jersey
1912
N. J. State Village for Epilep-
tics, Skillman, N. J.
3.
Rudolph Davis, Felon
Iowa
1914
State Penitentiary, Fort Ma-
dison, la.
4.
Nora Reynolds, Feeble-minded
Michigan
1916
Michigan Home and Training
School, Lapeer, Mich.
5.
l^'rank Osborn, Feeble-minded
New York
1915
Rome State Custodial Asylum.
Rome, N. Y.
6.
Pearley C. Mickle, Moral Pervert
Nevada
1918
District Court of the Fourth
Judicial District, Elko County,
Elko. Nevada
7.
AVarren Wallace Smith, Moral
Pervert
Indiana
1919
Circuit Court of Clark County,
Jeffersonville, Indiana
8.
Jacob Cline, Moral Pervert
Oregon
1931
Circuit Court for the County
of Marion, Oregon
Of these eight cases, two, those in Wash-
ington and Nevada,- originated in the criminal
courts in connection with sentences for
crimes, the statutes in these two states being
purely punitive in their motive. The other
six cases originated in custodial institutions
— in New Jersey in an institution for the
epnleptic; in Iowa and Oregon, prisons; in
Michigan and in New York, institutions for
the feeble-minded; in Indiana, in a men's
reformatory.
292
Case and Family Histories of Individuals
CASE AND FAMILY HISTORIES.
The facts concerning the individual ;iomi-
nated.for eugenical sterilization, and his or
her family history or pedigree, so far as
such facts are obtainable from the official
institution and court records, follow:
1. PETER FEILEN, Moral Pervert. Case
originated in the Superior Court of King
County, Seattle, Washington.
The records in this case are extremely
meager, so far as they concern the constitu-
tional make-up of the individual, and neither
is any record found descriptive of his
pedigree.
Under date of June 28, 1919, John D.
Carmody, Deputy Prosecuting Attorney of
King County, Washington, writes:
"Feilen was a man about forty years of
age; was constable of Kirkland, a little town
a few miles from Seattle; was a man of
family, and respected in his community. We
know of no criminal antecedents, nor 'are we
able to find any indication of degeneracy
in any of his family."
Under date of February 18, 1919, Henry
Drum, Superintendent of the State Peniten-
tiary at Walla Walla, where Feilen was
imprisoned, says:
"In view of the fact that there was grave
doubt as to Feilen's guilt, he having a great
number of the best people in that vicinity
behind him, protesting his innocence, he was
pardoned on December 27th, 1916."
"Feilen spent the active years of his life,
up to about forty, as a locomotive engineer,
and met with an accident in a collision that
gave him a severe brain concussion, and
acquaintances say that he has never been
so clear-minded or forceful since the. acci-
dent. I am convinced that he never was
guilty as charged."
(See also Chapter VII, Sec. 1, Wasli-
ingto.n.)
3. ALICE SMITH, Epileptic and l-ceblc-
minded. An inmate of the State Village
for Epileptics at Skillman, N. J.
Not only arc the individual case histories
of the institution at Skillman very complete,
but no institution in the country has a more
complete set of pedigree-records, secured at
first-hand by trained field workers, than has
this same institution. The result is that when
the New Jersey Supreme Court issued a
writ of certiorari, the institution at Skillman
was able to supply personal and pedigree
records adequate to the needs of determining
the particular question of degenerate heredi-
tary constitution, or more directly the
potentiality of the particular patient as a
parent of socially inadequate ofiFspring.
Case History of Alice Smith.
ALICE SMITH.
Consecutive Number 79.
Admitted to the New Jersey State Village
for Epileptics, August 20th, 1902.
Single, white, female.
No occupation, very little education.
Committed under date of August 19th
1902, by Alfred F. Skinner, a judge of th<
Court of Common Pleas of the County o:
Essex.
Residence previous to admission, Newark
(N. J..S. B. of C. Guardians).
Age at time of admission, 17 years, 11
rrionths and 17 days.
Age on May 31st, 1912, 27 years, 8 months
and 17 days.
Duration of treatment at the New Jersey
State Village for Epileptics, up to May 31st,
1912, 9 years, 9 months and 11 days.
A native of New Jersey, who was continu-
ously a resident of the State prior to admis-
sion.
The petitioner for her admission was Mr.
Hugh F. Fox, President of the New Jersey
State Board of Children's Guardians, with
address at 629 Commercial Trust Building,
Jersey City, N. J.
At the time of admission was given as
having "no occupation," no children.
During her residence in this institution^has
been employed at housework, school and
kitchen work.
At present (May 31, 1912), she is employed
as an assistant in the care of the officers'
dining room at Bergen Cottage.
Presented before the Board of Managers
of Feeble-minded (including Idiots, Imbe-
ciles and Morons), Epileptics, Criminals and
other Defectives, held at the New Jersey
State Village, Skillman, February 29th, 1912,
and May 31st, 1912.
Family History.
Patient's father is living, and at the present
time (1912) is about 78 years old. He is
mentally deficient, and at the present time is
demented, so that he comes under the cate-
Case and Family Histories of Individuals
293
gory of those commonly known as "half-
witted." He was a sailor, and is a veteran of
the Civil War. He had a brother who died
from epileptic attacks at the age of 13 years.
For full details of father's fraternity see
Hereditary History and Charts.
Patient's mother is an epileptic, and has
been the victim of epileptic seizure mani-
festations since the age of 14 years. She is
mentally deficient to a fairly marked degree.
She is alive, and at the present time about
70 years of age. Her mother (patient's
grandmother) was epileptic, and she (pa-
tient's mother) had one sister and one
brother each epileptic, and one brother and
one sister each feeble-minded. See heredi-
tary chart and history for complete informa-
tion concerning patient's maternal ancestors.
The patient had four brothers and three
sisters. Five of the children reached ma-
turity, five of whom are patients at the New
Jersey State Village for Epileptics.
Personal History.
Patient was sixth in line of birth of a
family of eight, and was born September,
1884. Patient is supposed to have been born
at term, after a normal labor and natural
delivery.
She was a breast-fed child, and said to
have had "spasm" from birth. Because of
the low mentality of patient's parents, and
their station in life, little is recorded or re-
membered concerning this patient's infancy
and early childhood. It is known, however,
that she had difficult dentition, and some of
the diseases of childhood.
The patient attended school very little, and
had practically no home training. Her
parents lived in an alley way, in a section
of the city which is the habitat of negroes.
The father's paternal interest in this patient
as well as all his children, was directly in
proportion to their earning capacity. Many
times,^in fits of anger, he would turn his
daughters out of his house, and they would
seek refuge among the negroes about the
neighborhood. The patient, Alice, jvas at
one time a pupil in the New Jersey Training
School for Feeble-minded Children.
She gives a history of having worked at
one time at general housework for a private
family, and that during this employment she
was favored with only nocturnal manifesta-
tions of epilepsy.
Patient states that one evening when she
was returning home, about 9 p. m., she- was
met by a negro, whom she accompanied to
a vacant lot nearby, where they indulged in
sexual intercourse.
She became pregnant, and in 1901 was de-
livered of a female offspring. At this time
she was cared for during her accouchement in
the almshouse. After she came from child-
bed she returned to her father's home and
kept the baby until it was taken by the
Children's Guardians' Society, who later
placed it in a private family, but it died at
the age of two years and three months of
pneumonia.
So far as can be learned from the patient,
and from the parents, she has always been
healthy, save for her epilepsy, and this state-
ment has been borne out since her admission
to this institution. Patient states that about
a year previous to her admission here, she
had an attack of smallpox, but there are no
objective sequelae present, or is there men-
tion made of it, in her history previous to
admission.
Onset and History of Epilepsy.
The patient is stated in admission papers
as having been afflicted with epilepsy since
birth. There is no detail mentioned, or
attacks described. No cause was assigned,
and the history of this patient's epilepsy,
prior to her admission, at best is vague and
indistinct.
The patient herself states that the onset
of her seizures did not occur until the age
of thirteen years, and that they followed after
she had visited the home of a friend, and
therein witnessed a young girl in the thralls
of an epileptic seizure. The patient herself
describes this as the cause of her epilepsy.
Patient states that with her attacks she
had an aura, which consisted chiefly of dizzi-
ness which occurred sufficient time before
impairment of consciousness to allow her to
seek a place of safety, and that as a rule she
reclined in a chair. From her knowledge
of her one time epileptic attacks, they were,
no doubt, grand mal, but of the mild grand
mal variety.
She denied biting her tongue, or loss of
bladder or rectal control. After attacks she
experienced, as a rule, moderate frontal head-
ache, which on one occasion was so severe
as to require rest in bed, and medical atten-
tion.
At times her attacks occurred in their
majority by night, then again by day, but at
no time, according to patient's memory, did
the nocturnal attacks occur to the exclusion
of the diurnal attacks, or vice versa. For
294
Casu and Family Histories of Individuals
some time previous to her admission she
stated that her attacks averaged one on aher-
nate days.
At one time, prior to her admission, there
is alleged to have occurred an attack, or a
series of attacks, which lasted twenty-four
hours. This information is most unreliable,
as it was given by a party almost completely
ignorant of the facts of the case, is contra-
dicted by the patient's statements, and is
improbable as judged by the subsequent his-
tory and course of her epilepsy. ^
During the forepart of her admission to
this institution, she was irregularly afflicted
with attacks, which on one occasion pros-
trated her. , Hysteria from the history since
admission appeared to alternate with epilepsy,
and as time has gone on her convulsive
phenomena gradually ceased, and she has
manifested her epilepsy by her moods and
emotions. Fairly frequent have been periods
during which she was depressed, abstained
from the intake of nourishments, and at
times manifested complete dissatisfaction
with her surroundings.
In the interim she manifested a fairly
pleasant and cheerful disposition. She has
been regularly employed, and has been,
except as previously noted, most faithful in
the discharge of her duties.
In speculating as to the cause of this
patient's epilepsy, there seems, after a careful
perusal of her family history, only two
factors to consider in the production of her
epilepsy. First, that this patient is congeni-
tally defective, and also inherited the epileptic
tendency from her parents.
It is now generally conceded that epilepsy
may be classed with and accounted for in
the same category with feeble-mindedness,
so that these problems, though to a degree
separated, can profitably be studied together.
The emotional shock, which the patient
ascribes as the cause of her epilepsy, if
present, was shnply the exciting cause, which
destroyed the equilibrium of a brain from
birth defective and abnormal in its makeup.
The one great causative factor in this pa-
tient's case is beyond doubt her bad heredity.
It is not at all difficult to understand how
this girl, born with a nervous system that
was frail, unstable, degenerate and no doubt
weak in its structural composition and force,
had the soil most fertile for the creation and
growth of epileptic manifestations. The
question of this patient at the present time,
due to her remission for years, being placed
in the group of cures, is one most worthy of
consideration. This especially is most impor-
tant from the eugenics point of view.
To begin with, what definition describes a
"cure" in epilepsy? Is the simple arrest of
seizures for a period of one, two, nine or
fifteen years, sufficient to place the individual
on the recovered list? We all admit thai
long remissions, induced by regular life, ancf
successful hygienic treatment, as favor pa
tients cared for in separate Colonies or Vil-
lages, are common, and give a certain prog-
nostic value, but are not synonyms of cure.
To consider the case in question, this
patient's seizures were not, according to her
own description, of the classical grand mal
type. This is strengthened by the distinct-
ness of her aura, the fairly marked period of
time between her prodromata and her impair-
ment of consciousness, both of which are in
inverse proportion to the severity of seizure
types. Her tongue was never bitten, she
has not the epileptic facies (scars from re-
peated wounds, usually received by falls dur-
ing attacks), which are so prevalent among
those essentially grand mal epileptics. There
seems every proof to justify the conclusion
that she had the minor form of epilepsy,
which is not as amenable to treatment as the
major variety. Careful observation of over
3,000 clinical histories of epileptics treated
in special institutions, has disclosed the fact
that major attacks of epilepsy are more
amenable to treatment than minor ones, next
coming major and minor forms combined,
and lastly minor attacks alone. Surely this
girl does not belong to the class of recover-
able cases, even in the face of the long re-
mission of her attacks. Sex also has been
found to play some little part in the prog-
nosis of epilepsy, and in that it favors the
male side. What epileptologist can state
with assurance, that even after a patient for
twenty years has been free, from attacks, but
that the next day, hour or moment, he will
not be hurled to the ground in the classical
throes of his or her one-time active disease?
To discharge such a case as this one as
cured, And allow her to return to her usual
walks in life, would be a crijne against so-
ciety. To withdraw each and every person
who has at any time displayed epileptic
tendencies, in any. degree whatever, from the
community, is the only rational course left
open. It would be indeed most wasteful to
the nation and State to allow this defective
to wander about, as it would entail perpetu-
ation of her kind, and other evils due to thi»
lack of proper care and segregation. From
Case and Famii,y Historiiis op Individuals
295
now on the chief treatment of this particular
case lies in preventing the reproduction of
her kind, as not one case is known of normal
offspring coming from two neuropathic
parents. Up to the present time this is the
first tentative conclusion as to the applica-
tion of Mendelian laws to human heredity.
PHYSICAL EXAMINATION AND
AMANUENSIS.
Physically at the time of this patient's
admission, and at the present time, she is
fairly well developed and nourished and
generally enjoys good health.
Her vital organs are negative to signs of
disease, and she presents no marked stigmata
or malformations.
Objectively, her deep reflexes are sluggish,
and there are some superficial varicosities,
and subjectively she complains of headache
and vertigo. Neither of these are severe, or
accompanied by prostration. Since her resi-
dence in this institution she has once been
confined to bed with an attack of influenza
of about five days' duration.
In November, 1906, she entered our regular
school and could not read or write, she being
reported, however, as anxious to learn. At
this time she could not count or read figures.
By June of the following year she was able
to read words of four or five letters, and
could write from copy, also could slightly
compose. She spelt very poorly, but knew
the addition tables. She did not retain that
which she learned. Her lack of advancement
was thought sufficient reason for withdraw-
ing her from school at the expiration of the
school year.
In November, 1910, she entered the Indus-
trial Class, as taught in the Cottage in which
she lived, and was taught embroidery. She
progressed very slowly, showed a disposition
to left-handedness, worked from right to
left, and displayed little interest in her work
and apparently liked to be urged and coaxed.
At the end of this year she was able to do a
button-hole stitch and some hemstitch. She
was at the expiration of this year perma-
nently withdrawn from school work.
At the present time she is employed in the
Cottage wherjein she resided, and is a fair
worker along domestic lines. Rather moody
and indifferent to her surroundings, and is
suspected of being a masturbator.
Her menstrual life is negative.
Since her admission, according to the
treatment of those who have most closely
observed her, she has deteriorated to some
degree mentally, and is becoming more
habituated to attacks of sullenness and dis-
content. Rather indifferent in matters of
personal adornment.
MENTAL STATUS IN THE CASE OF
ALICE SMITH.
General Appearance and Attitude.
Patient is a young woman with a pleasant
facial expression, very kind and obliging in
manner and a very good and steady worker.
She has a special fondness for children.
Upon the several occasions that she was
examined she co-operated very well, and
willingly answered all questions.
Speech.
This is somewhat defective, as she has a
congenital defect in her pronunciation, which
is a family trait, only one sister being entirely
free from it. Her vocabulary is poor and she
does not express herself well.
Consciousness and Orientation.
Her consciousness is clear, and she is per-
fectly oriented .as to time, place and person.
Memory.
For remote events it is very poor; patient
is unable to give any clear history of her
previous life, remembering only the most
prominent features. The idea of chronolog-
ical occurrence is absolutely unknown to her.
She remembers fairly well the outlines of
recent events, but she is unable to give a
connected, detailed account of the happen-
ings. Impressibility for numbers is poor.
Five numbers, even without distraction, are
not remembered. The maximum of syllables
which she is able to repeat is sixteen, the
record for a child of six years.
Attention.
Generally speaking this is good. Attention
tests meet with good results.
Range of Information.
Patient is extremely ignorant. She never
attended school previous to her coming to
the Village; benefited but little in the Village
school which she attended for some time.
She is an analphabet, and can hardly count.
She has no knowledge of the most ele-
mentary geographical and historical facts of
her own country. In spite of the fact thav
her father is a Civil War veteran, she knows
nothing about this war.
Judgment and Conclusion.
She is perfectly satisfied with her confine-
ment at the Village, and realizes that it is
necessary on account of her convulsions.
She does not realize, however, that the dis-
296
Case and Famii^y Histories oe Individuals
ease is due to heredity, as "'she never had any
fits before she grew up." When asked for
explanation why all her brothers and sisters
have that disease, she confessed ignorance;
she was told that it was on account of her
mother having that disease, but she can't
see how it could be possible, as her mother
only had them after a fall. She does not see
the reason why her parents should not have
had children, as the doctor at home never
told them that her disease was due to hered-
ity. She considers herself now cured; denies
any desire to marry, "because men are no
good; they marry you and then they leave
you after a few months." She would not,
however, be afraid to have children, as she
considers herself cured, and, therefore, she
could not transmit the disease. Of her
sexual experience with the negro some years
ago, she speaks quite indifferently. She pro-
fesses ignorance of the culprit. One night
at 9'p. m. when she was returning from her
work, this colored man ofifered her his com-
pany, and while they were near an empty
lot, he dragged her in and there committed
rape upon her. She never notified the police
because she could not have described the
man. She, however, told her father of the
occurrence. _ ^. ,,,,..
Emotions and Volition.
During the examination she did not show
any sign of nervousness or any other sign
of abnormal emotionality. Her daily conduct
is uniform, but if something occurs to her
dislike, she gets despondent and moody, re-
maining so for two or three days, refusing
to take food, and it was only recently that
she had to be compelled to consume her
meal. . . ..
Associations.
Her free associations show a marked
mental inhibition, and the controlled ones a
P°^''^'y°^'^^^^- Mental Tests.
According to the Binet-Simon scale she
grades between nine and ten years, which
indicates that her mentality is allied to mo-
ronity. Other tests, such as Healy's puzzle
tests, show that she is unable to learn by
experience, which fact is also apparent from
her life history. According to the Bechtcrcw
test she shows impairment of the ability for
observation and of memory, while the ability
for combination and synthesis is in the limits
of normal mental capacity.
Diagnosis and Prognosis.
Patient is an epileptic with a congenital
mental deficiency. She belongs to a frater-
nity consisting entirely of epileptics. Her
mother is also afflicted and her father, being
feeble-minded, is possibly a potential epilep-
tic, as his brother was a victim of epilepsy,
thus his feeble-mindedness may be only a
sign of latent epilepsy.
The patient is no doubt congenitally defi-
cient as the differential tests which we
applied, clearly prove, but this congenital
defect is no doubt due to the same factor
which causes her epileptic seizures. The
latter disease, however, did not do any fur-
ther damage with the exception of memory
impairment.
She was always a good natured and
obliging girl, with the hypersexuality which
is common in defectiveness. This patient did
not possess the normal aversions of a white
girl to a colored man, who was perhaps nice
to her. We can disregard her version of
being raped, as the specialists on this subject
have proven in extensive literature that it is
practically impossible for one man to commit
this crime unless the victim is insensible,
which latter state did not take place.
The patient is very fond of children, she is
hypersexual, as even now she is given to
masturbation, and no doubt when at large
she would soon fall victim to another un-
scrupulous man. The seriousness of her
disease, its hereditary character, does not
seem to dawn upon her, and she would there-
fore be a social danger, as she would be the
cause of a new generation of epileptics and
imbeciles. With the hereditj- chart at hand,
showing the disastrous effect of aggregated
heredity, her offspring would have practi-
cally no chance to escape a similar fate. The
fact of her not having any seizures does not
justify the fact of her being cured. Even
though this cure had taken place, the heredi-
tary aspect Avould not lose anything of its
danger, as the disposition of the disease is
carried in the germ plasm, on which the
influences of individual life are without effect.
Society, therefore, should take any per-
missible step to prevent her having children.
Seizure Record in the Case of Alice Smith.
Consecutive Number 79.
(Copied from Original Records.)
Year 1903—3 Petit mal seizures.
3 Grand mal seizures.
Year 1904—1 Petit mal attack.
Year 1905 — No seizures.
Year 1906 — No seizures.
Year 1907— No seizures.
Year 1908 — 8 Grand mal seizures.
Year 1909 — No seizures.
Year 1910 — No seizures.
Year 1911 — No seizures.
Year 1912 — No seizures, up to May 31.
Case and Family Histories of Individuals
297
THE NEW JERSEY STATE VILLAGE
FOR EPILEPTICS AT SKILLMAN.
Physical Examination.
Name — Alice Smith.
Cottage — Bergen.
Consecutive No. — 79.
General Appearance — Good.
Nutrition — Good.
Physical Condition — (Good, Impaired,
Feeble, Critical) Good.
Mental Condition — Feeble-minded.
Disposition — Good.
Habits — Cleanly.
Height— 5 feet % inches.
Weight — 119 pounds.
Complexion — Light.
Expression of Face:
Face — Happy.
Eyes — Blank.
Mouth — Cheerful.
Skin — Light.
Color of Hair — Light Brown.
Speech — Answers Questions, Lisps, Volu-
ble, Coherent, Voice Lisps.
Eyes — Light.
Pupils-^Equal.
Pupil Reaction— Light O. D., Accommo-
dation O. D., Light O. S., Accommodation
O. S.
Pupils— Contracted O. D., Contracted
O. S.
Lids — Oedematous; Conjunctiva, Cloudy;
Cornea, etc.. Clear.
Ophthalmoscopic Examination — Not made.
Muscular Anomalies — None.
Ears — Small.
Hearing — R.,. Normal; L., Normal; Dis-
charges, Pains, etc.. None.
Nose — Large.
Taste and Smell — Both Impaired.
Mouth — Good Condition.
Teeth— Good Condition.
Gums — Thickened.
Odor— Foul.
Mu. Mem. — Normal.
Palate — Normal.
Tonsils — Normal.
Pharynx — Normal.
Tongue — Normal.
Appetite and Bowels — Excessive* Appetite;
Bowels, Normal.
Thorax — Shallow and Narrow.
Spinal Column — Kyphotic.
Lungs — Poorly Developed.
Heart — Strong but Slow.
Vessels and Pulse — Volume, Full; Rhythm,
Regular; Rate, 76; Comparison, etc., Normal.
Abdomen and Viscera (Size, shape, posi-
tion of organs, tenderness, pulsations, etc.) —
Slightly Enlarged.
Condition of Reproductive Organs —
Normal.
Rectum — Normal.
Reflexes (Superficial and Deep) — Both
Nearly Absent.
Headache, Vertigo, Fever, General Symp-
toms, etc. — Headache and Vertigo.
Paralysis — None.
Memory — Recent, Fair Only, Remote.
Sleep — Good.
Dreams— None.
Evidences of Injury — Loss of Members,
Marks, Scars, Ruptures, Varicose Veins, etc.
Varicose Veins — On outside of both lower
legs; below knee, also on lower inner left
thigh.
Gait — Swinging.
Station — Good.
General Coordination — Good.
Muscular Twitchings, etc. — Good.
Sensation, Tactile, Thermal, Muscular
Sense, etc. — AH Normal.
Electrical Examination — Not Made.
Stigmata of Degeneration — None.
(See also Chapter VII, Sec. 2, New Jersey.)
Additional light is thrown upon the consti-
tutional makeup of the propositus by the
following cross-examination, which took
place at the meeting of the Board of Exam-
iners of Feeble-minded (including Idiots,
Imbeciles, and Morons), Epileptics, Crim-
inals and other Defectives, held at the New
Jersey State Village for Epileptics on May
31, 1912.
CASE PRESENTED— ALICE SMITH.
Dr. Weeks: I identify this patient as
Alice Smith, whose record I read before she
entered the room.
Dr. Costill: Alice, what is your name?
Alice: Alice Smith.
Dr. C: What is your father's name?
A. George Smith.
Dr. C: Do you know how old your
father is? A. He will be 77 tomorrow.
Dr. C: How many brothers and sisters
have you, Alice? A. Five here altogether.
Dr. C: Five here; well, how many of you
were there altogether? A. There were
eight of us altogether.
Dr. C: Where did you live before you
came here? A. In Newark.
Dr. C: Alice, did you ever have a child
before you came here? A. Yes, sir, I did.
298
Cash; and Famii.y Histories of Individuals
Dr. C: What was its father's name?
A. I don't know, sir.
Dr. C: You don't know the name of your
child's father? A. No, sir.
Dr. C. : Do you know whether he was
black or white? A. No, sir.
Dr. C: Can't you remember? A. No,
sir.
Dr. C. : Do you know how old the baby
was before you came here? A. Two years
old.
Dr. C: Did you ever have an attack of
small pox, Alice? A. Yes, sir.
Dr. C: How old were you when you had
your first epileptic attack? A. Thirteen
years old.
Dr. C: Did these attacks occur in the
day time or at night? A. In the morning.
Dr. C. : Did you know when these
attacks were to come on? A. Yes, sir; I
always knew.
Dr. C: How did you know? A. I got
dizzy in the head.
Dr. C: Have you had any attacks lately?
A. It's ten years since I had one.
Dr. C: Do you then consider yourself
cured? A. Yes, sir, I do myself.
Dr. C: Would you like to leave here?
A. Yes, sfr, I would.
Dr. C. : What would you do if you left
here? A. I would go home to pop and
mom.
Dr. C. : Well, who do you think would
take care of you; could you work? A. Oh,
yes.
Dr. C: What kind of work? A. House
work or minding children.
Dr. C. : Would you like to have any more
children? A. No, sir, no married life for
mine.
Dr. C: Do you think you would have
children if you did? A. No, they might
have the same disease as I have.
Dr. C: Then you don't want any more
children? A. No, sir, I don't.
Dr. C: You would live with your father?
A. Yes, sir.
Dr. C: Did you ever go to school, Alice?
A. I did go when I was home; I went to
school here once.
Dr. C: Did you ever go to the Industrial
School here? A. No, sir.
Dr. C. : Didn't you ever go to school
here and learn to sew? A. No.
Dr. C: How old are you, Alice? A.
Twenty-six years old.
Dr. C. : How old were you when you
came here? A. Twenty-one years old.
Mr. Byers: Alice, why wouldn't you like
to have children? A. They might have the
same disease that I have.
Mr. B.i Did your mother have this
trouble? A. Yes, sir.
Mr. B.: Any of your brothers? A. Yes,
sir.
Dr. C: Didn't you tell one of the doctors
here that you thought you were cured, and
that if you had children they wouldn't have
epilepsy? A. I don't remember.
Dr. C: How would you keep from hav-
ing children? A. Stay home with pop and
mom.
Dr. C: Well, how did you happen to
have that other child? A. Oh, that wouldn't
happen again.
Dr. C. : How would you prevent it?
A. Get pop to come and meet me when I
came home from work.
Dr. C: Do you think you could take
care of yourself if you had no one to take
care of you? A. I might.
PATIENT IS SHOWN PICTURES OF
SISTERS AND BROTHERS.
Mr. Byers: Alice, do you know who that
is? A. George Smith.
Mr. B.: Is he any relation to you?
A. My brother.
Mr. B.: Where is he? A. Over in
Smith (Cottage).
Mr. B.: Is he an inmate here? A. Yes,
sir.
Mr. B.: Why is he here? A. Because
he has convulsions.
Mr. B.: Who is that? A. Dorretta
Smith.
Mr. B.: Any relation to you? A. My
sister.
Mr. B.: Where does she live? A. Over
in "J."
Mr. B.: In this institution? A. Yes, sir.
Mr. B.: Who is that? A.'Russel Smith.
Mr. B.: Is he any relation to you? A.
Yes, sir; my brother.
Mr. B.: Where does he live? A. Over
to Garrison.
Mr. B.: Why is he over there? A. Be-
cause he has spells, too.
Mr. B.:» Whose picture is that? A. That's
Emma Smith.
Mr. B.: Any relation to you? A My
sister.
Mr. B.: Does she live here, too? A.
Yes, sir.
Mr. B.: Who is that? A. Why that
is me.
Case and Family Histories of Individuals
299
Mr. B.: Where do you live? A. In the
Children's Building.
Mr. B.: Are you here for the same reason
as your brothers and sisters? A. Yes, sir;
for the same reason.
Mr. B.. Alice, do you like the men?
A. No, sir.
Mr. B.: Not at all? A. Not at all.
Mr. B.: You don't see many men here;
didn't you like the men before you came
here? A. No, indeed.
Mr. Beekman: Suppose you could have
an operation performed upon you which
would prevent your having any 'more chil-
dren, would you submit to this? A. I would.
Mr. B.: You are so anxious not .to have
any children on account of this disease, that
you would be willing to submit to an opera-
tion? A. Yes, sir.
Mr. Byers: Alice, have you any bad
habits? A. No, sir.
Mr. B.: Are you sure? A. Yes, sir.
Mr. B.: Sometimes women and some-
times men have bad habits which they prac-
tice when they are alone. Do you do any-
thing of that sort? A. No, sir.
PEDIGREE OR FAMILY HISTORY
RECORD.
Consecutive Number — 79.
Cottage — Bergen.
Name — Alice Smith.
Source of Information. April, 1911.
Mr. George Smith, the patient's father,
1 Henry Place, Bloomfield.
Mrs. Susan Smith, the patient's mother,
1 Henry Place, Bloomfield.
Mrs. Margaret Bender, the patient's moth-
er's sister, Bloomfield; Nathan Conklin, the
patient's mother's brother, 14 Railroad street,
Bloomfield.
Mrs. Jessie Van Riper, the patient's father's
cousin, . 293 Littleton avenue, Newark.
Mrs. Moses Bender, the patient's mother's
sister's son's wife, Bloomfield.
Mrs. Wilson, the patient's mother's sister's
daughter, Bloomfield.
Mr. Lewis Bender, the patient's mother's
sister's son, Bloomfield.
Charles Penn, the patient's mother's ma-
ternal cousin. Upper Montclair.
Caleb Riker, the patient's mother's moth-
er's brother, Dodd street, Orange.
Mrs. Caleb Riker, the patient's mother's
mother's brother's wife, Dodd street, Orange.
Mrs. Kraushu, the patient's mother's sis-
ter's daughter. Hedges Alley, Newark.
Moses Bender, the patient's mother's son,
Bloomfield.
Mr. Lind, Overseer of the Poor, Blomfield.
A newspaper reporter resident in Bloom-
field.
Policeman, Montclair.
Mrs. Thompson, matron of the Children's
Home, Montclair.
The Patient and Her Home.
The patient's family is well known in the
town, as they are generally spoken of as
being half-witted. They have always lived
in the poorer parts of the town, for the most
part in the vicinity of the railroad, in an
alley known as "Washerwoman's Alley,"
where the houses are in poor condition and
are occupied by negroes. At present the .
family is living in a house in the rear of
Henry street. The children never had any.
home training and were not able to learn
much at school; their parents were too
feeble-minded to give them the care they
needed or to see the necessity of keeping
them in school regularly. The father abused
the family, and has often turned the girls
out of the house, at such times they were
obliged to take refuge in the homes of their
negro neighbors. When their illegitimate
children were born, Alice and Emma went
to the Poor House.
Neighborhood — At present fair, formerly
very bad.
Housing — Rear house in poor condition;
there are four families in the house. It is.
located in the rear of Henry street, which is
a good street. The family has two rooms
on the first floor and a kitchen and store
room in the basement. They pay $6.00 a
month rent.
Home Treatment — Very bad and neglect-
ful.
Number in the Household — The patient's
father and mother; one is feeble-minded and
the other is epileptic.
Financial Condition — Very poor. The
mother gets help regularly from the town
and the father has a pension of $20.00 a
month. They were at one time cared for at
the Home for Disabled Soldiers in Vineland.
Education — All the children went to school
but very little. Alice and Russell were at
one time pupils at the New Jersey Training
School at Vineland, and Emma was at one
time in the Home of the Good Shepherd at
Newark.
The Patient's Fraternity — There were
eight children in the fraternity, five of these
300
CasB and Famii,y Histories op Individuals
grew up and of these five four are patients
at the New Jersey Village for Epileptics at
Skillman.
The first was a boy, 2-IV-23. He was
drowned when he was only seven years old.
The second was Dorretta, 2-IV-35. She
was born in 1873, and is a patient at the
New Jersey State Village for Epileptics.
Morally she is said to have been the best in
the family.
The third was George, 2-IV-26. He is an
epileptic and so feeble-minded that he is not
allowed by the law to marry. At present he
is working on a farm in Verona. Papers are
on file for his admission to the State Village,
but his father decided not to have him
admitted as long as he was able to work.
The fourth was a girl, 2-IV-27, who died
in infancy.
The fifth was Emma Jane, 2-IV-28. She
was born in 1882. While living in Bloom-
field she had an illegitimate child, a girl,
2-IV-13. The child was born in the Alms-
house and died when it was a few weeks old.
The sixth was Alice, 2-IV-29. She was
born 1884. She had an illegitimate child,
2-IV-13, by a colored man whose name is
said to have been Washington, 2-IV-32. At
first the child was said to have been put in
an orphan asylum for colored children at
Bayonne, but it was learned later that the
child, after having been placed with a private
family, died at the age of six months.
The seventh was a boy, 2-IV-24. He died
- when he was four years old. His death was
due to injuries received from a fall out of a
second story window.
The eighth was Russell, 2-IV-30. He was
born 1886. He was brought to the State
Village from the New Jersey Training School
at Vineland.
THE PATIENT'S FATHER AND HIS
FRATERNITY.
His name is George Smith, 3-III-55. He
was born somewhere in Connecticut, 1834,
and was brought to New Jersey when only
a small child, and has lived in this State ever
since. He is mentally deficient, has an ugly
disposition and an ugly temper. He has a
very exalted idea of himself and his own
accomplishments, in short, considers himself
quite above the average. He claims to have
been an engineer at one time; was a sailor
and is a veteran of the Civil War. At present
he does nothing but draw his pension. A
few years ago he tried to act as flagman on
the railroad, but for some reason lost the job.
He has been an inmate of the Home for Dis-
abled Soldiers at Kearney, N. J., and at
another time was at the Home for Disabled
Soldiers and Wives at Vineland, but they had
to leave there because his wife is an epileptic.
He is the oldest in a family of nine
children.
The second was Caroline, 1-III-34. She
married a man by the name of Smith, of
South Norfolk, Conn. They had three chil-
dren, two daughters, l-IV-7, 8, and a son,
Fred Smith, l-IV-9. One of the daughters
lives in Kansas City and one in Bridgeport,
Conn. Their names are unknown. Fred is
said to be- an engineer or a machinist and
lives somewhere in Connecticut.
The third was a boy, 2-III-53, who was
killed by a horse at the age of seventeen.
The fourth was a boy, 2-1 1 1-54, who died
at the age of 12 of epileptic attacks.
The fifth and eighth were both boys,
2-III-52, 51. The one died at the age of
nine, cause unknown; and the other died in
infancy, cause unknown.
The sixth was Delia, 1-111-32. She died
at 27 of childbirth. The child did not live,
and she had no others before this. Her
husband's name was William Walters,
1-III-136.
The seventh was Sarah, 1-III-34. She
married Henry Brown, and died at the
age of 23. All of her life she was subject
to very severe headaches. The cause of her
death is unknown. She had two daughters,
one of them, l-IV-6, who married Harvey
Mills, died of what was supposed to be con-
sumption at the age of 29. She never had
any children. The other daughter was Jessie,
l-IV-6. She married a man by the name
of Van Riper and lives at 292 Littleton
avenue, Newark. She is of a very nervous
temperament, but otherwise seems to be
normal. She has had seven children, sbt
boys and one girl. Four of the boys, l-V-2,
5, 6, 7, and the girl, l-V-8, are living. One
boy died in infancy and the other, l-V-4, died
at three of spinal meningitis. The two oldest
boys appear to be normal; they are both in
school; the others are too young yet to go
to school.
The ninth and youngest in the fraternity
was Russell, 1-III-33. He is said to have
been a heavy drinker and is thought to have
died of cancer of the stomach. He had four
children, three daughters and one son. The
son, 1-IV-l, died at the age of 31 of con-
sumption. The girls are all living some-
where in Newark; they are Ada, Ida and
Josephine. Josephine is said to be sexually
Case and Family Histories oe Individuals
301
immoral, and had one illegitimate child
which she is supposed to have smothered.
The girls are I-IV-2, 4.
By his first wife the patient's father had
a daughter who died in infancy.
PATIENT'S FATHER'S FATHER AND
HIS FRATERNITY.
His name was Smith. He was a
heavy drinker, and died at the age of 88 of
paralysis. He at one time lived in a soldiers'
home. He had three brothers and five sis-
ters, all of whom are dead except possibly
Sarah Sherwood.
Burr Smith, l-II-l, is said to have ived
to be 81 and to have died then of heart
trouble. He had three daughters and one
son, all of whom are dead except one daugh-
ter, Elmira, l-III-l; she married a man by
the name of Worster, and lives in Newark.
See additional information.
Allen Smith, 1-II-2, died at the age of 37.
The cause of his death is unknown. He had
two sons and one daughter, 1-III-27, 29.
The daughter is thought to be living in
Goshen, N. Y., but nothing is known about
the others, and her name is not known.
Harry Smith, 1-II-3, lived to be about 82.
He had eight children, two of whom died in
infancy. There were two daughters and three
sons supposed to be still living, 1-III-5, 9,
one of them, George Burr Smith, lives at
Westport, Conn., but it is not known where
the others are.
Sarah Smith, 1-II-5, married a man by the
name of Sherwood. She is
supposed to be still living in Westport, Conn.
She had one son.
Mary Smith, 1-II-7, married George Gor-
man, and lived in Goshen, N. Y. She had
five sons and two daughters.
Delia Smith, 1-II-6, married Patrick Riley.
She had one son and one daughter. The
son, 1-111-31, lives in Southport, Conn.,
and the daughter, who married a merchant
by the name of Hay, lives in Upper Norfolk,
Conn.
Caroline Smith, 1-II-4, married '■
Brown. She had five children. The last
sister, 1-II-8, married Harvey Keeler. She
had three sons and two daughters. The
daughters, 1-III-22, 31, married brothers by
the name of Allen, and live in Westport,
Conn.
THE PATIENT'S FATHER'S FATH-
ER'S PARENTS, l-I-l, 2..
They both lived to be old. The mother
was a great smoker and is said never to have
been without her clay pipe.
THE PATIENT'S FATHER'S MOTHER
AND HER FRATERNITY.
Her maiden name was Sarah Ball, 3-II-10.
She lived to be over 70 years old Her death
is said to have been due to dropsy. For
over 35 years she kept a boarding house.
She had three brothers and one sister.
Aaron Ball, 2-II-11, was killed in the war.
He was married and had had one daughter.
Celie Ball was a shoemaker, 2-II-12. He
was a hard drinker. He had two sons and
one daughter. One of the sons, William
Ball, travelled in a minstrel show and was
killed in a railroad accident. The other son,
2-III-14, was a soldier, and like his father,
was alcoholic. He died in some soldiers'
home.
Amzie Ball, 2-II-14, died from stomach
trouble. He had two children, who died
early in life, and three who grew up,
William, Theodore and Jesse. William and
Theodore are said to be living near Plain-
field.
Angelina Kiddie was the sister, 1-II-13.
She died in 1899 in the Old Ladies' Home
in Orange. She never had any children.
The patient's father's mother's parents are
said to have lived to be very old, but nothing
more is known about them.
THE PATIENT'S MOTHER AND HER
FRATERNITY, 2-III-56.
Her maiden name was Susan Ann Conk-
lin. She was born in New Jersey but could
not tell the name of the town, neither could
she tell how old she is,- but thinks that she
is about 66 years old. Since she was about
14 years old she has been subject to epilepsy
and claims that it was caused by a fall on the
stairs.
She is the fourth in line of birth of seven
children.
Nathan, 2-III-61, is the first in line of
birth. He never was married, and lives alone
in a miserable room on Railroad street,
Bloomfield. He is very feeble-minded. He
served in the Civil War, and now draws a
pension which his sister,- Margaret Bender,
and her daughter, Mrs. Wilson, manage to
spend for him.
Catherine, 3-III-70, was the second in the
family. She was said to have been deficient
mentally and was given to the use of alcohol.
She died of paralysis of the throat. Her
husband was Thomas Hewett; he was
a very hard drinker and died of heart
trouble in 1890. They had thirteen children.
The oldest was Thomas. He, while trying
302
Case and Family Histories op Individuals
to hold a man up on the road, was killed.
The man whom he tried to rob shot in self-
defense. The second was Johanna, 4-IV-73.
She had one illegitimate child and is now
said to be married to a man by the name
of Rice, in Chicag-o. She is said not to
have been very bright. The third was Libby,
4-IV-73. She has been married twice, and is
now living somewhere in Vermont. Her first
husband's name was Shepherd, and the
second was Gramling. By her first hus-
band she had one son. The fourth is Moses,
3-IV-53. He is living at Jerome Place,
Bloomfield, and has two sons and two daugh-
ters. The fifth was Edward. He is living
somewhere in Connecticut, 3-IV-53. The
sixth is James. He is married but has no
children. He is living somewhere in Orange,
and is by trade a hatter. He is a hard
drinker. The seventh is Esther, 3-IV-56.
She married a man by the name of Mar-
tin, and now lives in Bridgeport, Conn.
They have two sons and two daughters. The
eighth is Susan, 40-IV-74. She married
Nicholson, who is now dead. She
is sexually immoral and is alcoholic. She
has three daughters and two sons, all of
whom are in a home in Brooklyn. The ninth
was John, 3-IV-50. He never married, is
mentally deficient, and it is not known
where he is. The tenth is Jenni? Peters;
She lives in Bloomfield, near Brookside
Place, 3-IV-49. She has no children, and is
said to have some kind of kidney trouble.
The eleventh is Mrs. Kershu, 4-IV-75.
She lives on the second floor in a miserable
house in what is known as Hedges Alley in
Newark. She is nervous and in very poor
physical condition, probably due to poverty.
She has had three children, a son seven years
old and a girl five years, are living. There
was a boy who only lived twelve hours.
There were two other children of Catherine
who died early in life.
Margaret, 3-1 11-57, is the third in the pa-
tient's mother's fraternity. She married
Jacob Bender. He was a drunkard and
died in the Home for Soldiers at Kearny.
It is said he had softening of the brain.
Margaret is an epileptic, and is feeble-minded
like her sister, and she has a growth of some
kind on her face; a hard bunch on the jaw
near the ear; it is as large as her fist. Her
epilepsy is said to have been caused by
measles. She had in all ten children, of these
five sons and one daughter died in infancy.
. Of the four who grew up there is Libby
Wilson, who lives on Glenwood avenue.
Bloomfield. She, 3-IV-13, has spells which
seem to be petit mal attacks of epilepsy.
She neglects her children and is a very poor
housekeeper. Her first husband's name was
Steele, and by him she had three sons.
Her oldest son is 14 years old, and is in the
sixth grade at school. The next is not very
bright. He is 11 years old and is in the
second grade at school. He is also cross-
eyed. The other is 9 years old, and is also
in the second grade at school. Her second
husband's name was Arnold. She
had no children by him. Her third hus-
band, the present one, is shiftless and a hard
drinker. By him she has had one daughter,
2-V-15, born 1909. The other children of
Margaret are Lewis, Moses and Louise.
Lewis Bender is mentally deficient, 3-IV-
46, and so is his wife. They have four chil-
dren living, all under six years old, and one
other who died when about two years of
age. Lewis lives in Bloomfield and drives a
wagon for a meat market. At one- time he
was a hard drinker, but has been leading a
sober, industrious life since he joined the
Salvation Army. Moses Bender, 3-IV-47, is
janitor of the Watsessing School. He is de-
ficient mentally, though a good worker and
faithful in all that he is supposed to do, but
he must be told each time what to do. His
wife is appfirently normal and a good house-
keeper. Her maiden name was .
They have six children: Lewis, born 1894,
3-IV-19. He left school at 16 and was then
in the third grade. He could do good
manual work and was reliable, but otherwise
he could not learn. William, born 1895,
passed the fourth grade, but he could not go
any further. He was lazy and rough and
could not be relied upon. Maggie, born 1898,
is in the fourth grade, and has been there for
two years. Lillian, born 1896, is in the
kindergarten, and has been a very trouble-
some child. Louise, the other daughter of
Margaret, 3-IV-4S, married Michael Quinii,
3-V-39. He was a drunkard and died
from consumption in the almshouse. Louise
is sexually immoral, and while living in
Bloomfield was arrested several times, for
disturbing the peace. She is said by her
relatives to be a "perfect devil." She had
four children, three of whom grew up: John,
Michael and James, 3-V25, 28. John, the
eldest, is about 18. They were all brought
up in orphan asylums.
Moses Elias, 2-111-59, was the fif'h in the
patient's mother's fraternity. He died at the
age of three of King's evil.
Case and Family Histories op Individuals
303
The sixth was a boy, 3-III-58, who died
in infancy.
The last was an epileptic boy, 2-III-60. He
died before he was 10 years old.
THE PATIENT'S MOTHER'S FATHER
AND HIS FRATERNITY.
Her father was Moses Conklin, 3-II-21.
He was deficient mentally, was a drunkard
and of a very brutal disposition. He
would sell anything that be could get his
hands on for a drink, even to his wife's
clothes. Once he and his wife went to Ohio,
and they walked all of the way back. He
was killed at Morristown at a Fourth of July
celebration. He was intoxicated and his
death was due to his own act. He had two
sisters who married brothers by the name of
Mope. They are all dead now.
THE PATIENT'S MOTHER'S MOTHER
AND HER FRATERNITY.
Her maiden name was Johanna Riker. She
was an epileptic and lived to be 85 years old.
Most of her life she took in washing. She
had four sisters and six brothers, all of
whom are dead now except Caleb Riker.
He is over 80 years old, and is living on
Dodd street, near Park avenue, in Orange.
Susan, 4-II-33, a sister of Johanna, mar-
ried John Penn. He was backward, and
so was his brother, Joseph, 4-II-39, 40.
Susan had eight children. The oldest was
David, 4-III-93. He was a hard drinker and
his wife was feeble-minded. They are both
dead now. The next was John. His chil-
dren live somewhere in Doddville. He died
from an accident. Charlie is the third,
1-III-90. He lives on- the Mountain Road
in Upper Montclair. He is feeble-minded,
but reliable. He works regularly for a family
by the name of in Upper Mont-
clair. He has been married twice. His first
wife, 4-III-97, died from consumption. By
her he had six children, two of them, 4-IV,
69, 71, died of consumption. The oldest was
Sarah, she lives in Arlington, and married
a man by the name of George Daven-
port. She was considered feeble-minded.
The next was Charles. He was said to have
been queer and could not learn. He wan-
dered away from home when he was 14 years
old, and was never heard of again. The next
was Alice, 4-IV-68. She married a man by
the name of Macon and has one son Ches-
ter Macon. She is now living some-
where in Newark. After her came George,
4-IV-70. He was a musician. About ten
years ago he left his wife and two children
and has not been heard of since. His son's
name was Clarence Penn, and his daughter
was Mary Penn. She married a man who is
a keeper in some boys' home. Charlie's
second wife is Ann Penn, 4-III-96. She is
sexually immoral, alcoholic, criminalistic,
and is now in jail in Newark. By her he had
four children, two of them were still born.
The other two, a boy and a girl, are living.
The girl, who is somewhat backward, is in
school at Montclair Heights School, on the
Mt. Hebrew Road. She is said to be a nice
child, 4-IV-64, who is kept at home a good
deal to take care of the house. The boy is
Walter, 4-IV-66. He was born in 1905, but
appears to be no more than three or four
years old. He i§ now in the Children's Home
at Montclair. When he was brought to the
Home he was in a very bad condition, due to
neglect. His nose was sore and the odor was
vile, due to continuous colds, and the bone
had been partly eaten away and had to be
removed.
Mary, 4-II-34, was the next in the frater-
nity. She is dead now, and the cause of
death is unknown. She married David Tho-
ma, and lived in Albany. She had three
sons, John, David, and Henry, and one
daughter.
Jeannette, 4-II-31, died from dropsy. Her
husband's name was Abraham Brown, and
by him she had two children. Her second
husband's name was Simpson, and by him
she had one child.
Israel, 3-II-27, was the oldest of the boys
in the patient's mother's mother's fraternity.
He lived to be 83, and died of some kind of
stomach trouble.
David, 4-II-32, lived to be 93. He had six
sons and five daughters. One of his sons
named David, 4-III-72, is in the State Hos-
pital for the Insane at Morris Plains. Da-
vid's wife was killed by lightning. One of
their sons, Charles, is living at West Orange.
Of their daughters, Liza, Harriet, and Irene
are still living; Liza is living in Bergen
County. She had four sons. She married.
Matthew, 4-II-44, was found dead in bed.
He was never married.
William, 4-II-35, lived in the West. He
had lost one arm in an accident. He had
three daughters and one son. The son was
killed in a mining accident.
Elisha, 4-II-45. He died from Bright's
disease.
Caleb, 3-II-23, is the youngest and he is
normal, and so is his wife. They have had
six children, three sons and three daughters.
304
Cash; and Family Histories of* Individuai,s
There was one son who died before he was
two of brain fever, 3-IV-67. A son and a
daughter died of scarlet fever. One was 11
and the other 7. Of the two daughters living,
one is Martha Bryan. She lives in Dover.
She has six sons and two daughters,
all living, except one daughter. Her hus-
band is dead. The other daughter' is Minerva
Fifield. She lives in Newark and. has one
son and three daughters. Caleb's son is
named Emmons, 3-III-56. He is married
but has no children. He is normal.
Johanna Riker, the patient's' moth-
er's mother, was married when she was but
14 years old, and her husband, Moses Conk-
lin, 3-11-31, was her first cousin. His
mother, 3-1-6, and her father, 3-1-7, were
brother and sister.
THE PATIENT'S MOTHER'S MOTH-
ER'S PARENTS.
Her father died at 85 from erysipelas, and
her mother, whose maiden name was
Surch, died from dropsy, and her mother,
whose maiden name was Rose, died from
a cancer. ,
ADDITIONAL INFORMATION CON-
CERNING THE PATIENT AND HER
FRATERNITY.
Source — Emma, Alice and Dorretta Smith,
patients at the New Jersey State Village.
They each declared the following to be
true, separately and independently.
The oldest in the fraternity, 2-IV-23, was
subject to epileptic attacks and his death
occurred during a seizure when he fell into
the water and was drowned.
The seventh, 2-IV-24, was also subject to
epilepsy, and it was while he had a seizure
that he fell out of a window and was killed.
3. RUDOLPH DAVIS, Felon. No. 10406.
An inmate of the State Penitentiary, Fort
Madison, Iowa.
Rudolph Davis was one of twenty-three
inmates of the Penitentiary at Fort Madison,
Iowa, who, because they had been twice
convicted of felony were, under the provi-
sions of Chapter 187 of the Acts of the
Thirty-fifth General Assembly, ordered by
the Board of Parole of the State of Iowa to
be vasectomized by the phyisician of said
prison. It thus appears that an order for
sterilization was issued not on the evidence
of the constitutional makeup of the indi-
vidual, nor of his hereditary potentialities as
determined ' by the pedigree study of his
family.
Neither the court nor the penitentiary offi-
cials were supplied with the facts concerning
the hereditary makeup of this man, but the
Board of Parole on April 24, 1919, supplied
the following data:
"This man was committed to our State
Penitentiary at Fort Madison on August
28th, 1913, having been convicted of the
crime of breaking and entering, he having
broken into a laundry, stealing therefrom a
considerable quantity of clothing and other
property. At that time he was twenty-two
years of age.
"From what we were able to learn we con-
cluded that he was born in the State of Mis-
sissippi; that when he was an infant his
father and mother separated and soon there-
after he was removed by his mother to New
Orleans; that he attended school but very
little, only reaching the third grade and quit-
ting at the age of nine years; that he was
neglected and at an early age in -his history
acquired the habit of using intoxicating
liquors; that he was frequently arrested for
intoxication and served several jail sentences
for that oflfense.
"When about ten years of age he went to
Little Rock, Arkansas, and when about fif-
teen years of age he burglarized three dif-
ferent places there and received a sentence
of four years in the State Penitentiary at
Little Rock. After serving about three years
he was released from there and about a year
thereafter, 'or in August, 1913, he committed
the oflfense in Iowa above referred to.
"It was in February, 1914, that the opera-
tion of vasectomy was ordered. This matter
was heard in the Federal Court and an in-
junction granted preventing the operatior
from being performed.
"It may be interesting to note that thi
man made a fairly good record in prison an"'
that on July 13th, 1917, nearly four year
after his sentence, and when he still had ovc
two years to serve, if he had remained '
prison, this Board then paroled him, securir
him a good position working in a roui
house, which was work that he was qualifii
to do and which was agreeable to him. ,^
"A very few days after he reached his
employment his employer reported to us
that he was very hard to get along with
owing to his uncontrollable temper and that
it had been necessary to change him from
one place to another. Soon thereafter he
Heredity Chart of Alice Smith
X
1L
%
DVO"
4 4 d d
«?' '-'^ '■" < ^ ^
\i8 y9 ^o |j/ ■ -^3 pj \A¥
</- 7a Killed
Sma/fea
t^rO
Cerebral
I 1 A i -^
S. 3 (.
^ Ssnsnno
/ y ■*' 7
<^-3
mt/^inail}*
3r*tried ^fff
from
5|g^; Md^^S^j^Sj^fe
k
j^
k
[^
^
DBO
^//ce Smift.
crea ■
f^-m^ Em
llftiT
6
D
lS^'[5
■ 6*-«,
/fd-y /a- HerecJ/Ti/ C/jart
H © Cr/minQ/zWc
b — J^orn
3x - 3ey.oia//u //r?<nor-a/
So//c/- CiP^/7£cf' /TT'Jr'/'/ei/ //7^/V/'/c/o/s i^r /'ra}^rw/fe-j.
8
'frafei'fi 'T^ //■?>?
d
6
:2>ov^/}Ur Son -^iavghfir
Heredity Chart of Alice Smitli
DE
3 '/.
i©
t i
'* U' " Ua |zj jay
''^'-<'*-/««
I
/7//ce •Smith.
A-/fw *-/^ *-*f- /-/f'?
n^^ EhE^
r~~\ fflorrtftte Ijut ^"S
aT/ier
■T^rafern 'Ti^ ^/^e
(Til)
V
^f? s^t/are of c/rc/e-zjum^at of //r£//t'ic/ua/x ef/^a/^^e^.
Jl^s /otv s^i/are ar- c/'rc/e precei/ec/ /y ^m - //fj^h'//i>/ra/
(^^arg£3.
^/! /^<r ycx/^4>7 /^Ci'/i^/^c/a/ /3 r<^f&rr-^€/ 7^ l^u g'ef?era^^/7
'^'la' /ye/Si^/r^/ /7i/^^£r. 17ii/s /^//cf S/77/r^ ><; TV- J?n
^/ T/re C////a/r,;//'s Orp//a// i9Jy/t^/r?^ Say'^^''^'', //■ -7^
— x" /io/?7£ /ar- r/7e z^^^, ■S5>W-/;'^<r //. JT
mmm3. /%p^^ /or 2I/sa^c^ S^/^/ers ^ /fiar^^u^ ^. y.
^i'/Za.^': /^r J^/so^/is-^Z -Ja/c^Jer/s.
mS-.^T^/S' /yos^'f/S/ frrr/7sa/?^^ /Ty^rr/J TVa/^s.
'9. Coi/f7^ Ja// A^divar^^ /yj'.
Casb and Family Histories op Individuals
305
absconded and was later arrested in San
Francisco but was not returned to our peni-
tentiary."
(See also Chapter VII, Sec. Ill, Iowa.)
4. NORA REYNOLDS. Feeble-minded.
An inmate of the Michigan Home and
Training School, Lapeer, Michigan.
In a letter dated February 14, 1919, Dr.
H. A. Haynes, Medical Superintendent of
the Michigan Home and Training School, at
Lapeer, wrote:
"Replying to your letter of the 4th relative
to history of Nora Reynolds, would say that
I have very little history of the case. I have
no record of any of her relatives and it
appears that very little is known of her
history at the State Public School where she
was admitted when a little girl. She was
placed in several homes and failed to make
good, therefore was returned to the school
and eventually was transferred to this insti-
tution."
The institutional records of Nora Reynolds
follow :
Date of birth: June 15, 1883.
INSTITUTIONAL HISTORY.
Nora came to the institution March 27,
1907. At that time few institutional records
were kept. In the latter part of 1908 or the
early part of 1909 made her escape from the
institution. When she was returned she was
found to be pregnant, and November 11,
1909, she gave birth to a female child.
(From office record.)
March 32, 1911 — Mental examination gave
approximate mental age of 11 years.
June 18, 1912 — Nora Reynolds about 1
a. m. escaped from cottage soon after Mrs.
, nightwatch, made her 12 o'clock
rounds. The patient was apprehended the
following morning. She says she climbed
out of a window and had no one to help her.
She was dressed in a night dress, shoes, and
a dress. She was bareheaded and had on
no underwear. She says she saw no one
after she left the cottage.
August 13, 1912— Patient made her escape
from the cottage during the night. She took
a suit case with a few things in it. She is
believed to have had assistance.
September 11, 1913— Dr. H. notified that
R. D. of township has in
his house Nora Reynolds. She was re-
turned to the institution.
September 11, 1913— Mr. F , night
watch of cottage, arrested at 9:30
for being implicated in getting patient out.
Mr. F. confessed to helping her out and is
in jail at present awaiting trial. Nora says
she is pregnant.
October 23 and 35, 1913 — Nora taken to
court when Mr. F. was having his trial for
carnal relations with Nora. He was found
guilty.
March 35, 1913 — Patient taken by Miss
of her cottage to hospital at 13:80
A. M. Gave birth to a female child at 1:00
A. M.
November 14, 1914 — Patient has recently
been ugly toward other patients in the cot-
tage and today assaulted ■■ , slapping
her quite severely.
January 17, 1916— Punished her little girl
unjustly and was impudent and violent when
remonstrated by her attendant.
March 28, 1917 — Wassermami negative.
October 23, 1917 — Mental examination by
Terman Stanford Revision of Binet Test —
9 years, 3 months.
November 31, 1918 — Patient obtained pos-
session of a master key and let herself out
through the fire escape of the third floor.
She let herself in again and denied having
the key. When she was searched none was
found, but the following morning the master
key was found outside of her window.
Additional Information.
An undated letter from patient to an out-
of-town man was intercepted. This letter
planned meeting him every morning.
Another letter dated 10-14-11 asks an-
other out-of-town man to meet her in Flint,
as she is about to escape from the institu-
tion.
A letter from the State Agent states that
Nora was given when a very little girl to.
Mrs. . who later died and in turn
gave her to Mr. and Mrs. F . From
this home she went to the State Public
School. She was admitted to the Michigan
Home and Training School from the State
Public School. Mr. and Mrs. F are
unknown and there are no records of adop-
tion.
(See also Chapter VII, Sec. IV, Michi-
gan.)
5. FRANK OSBORN, feeble-minded, an
inmate of the Rome State Custodial
Asylum, Rome, N. Y.
It appears that there was no detailed nor
extensive family history study made in this
case, as was secured in the case of Alice
306
CASe AND FaMII^Y HISTORIES OF INDIVIDUALS
Smith, in New Jersey. However, consider-
able evidence concerning the constitutional
make-up and the pedigree of the subject of
this particular case is secured by examining
the court records in the matter and extract-
ing from them such references as may
throw light upon the particular question in
hand. The following extracts are taken
from the RECORD ON APPEAL, Supreme
Court of the State of New York, Appellate
Division, Third Department, in the Case of
Osborn vs. Board of Examiners:
"The board has made an examination of
one Frank Osborn, who is about twenty-two
years of age, and was sent to the Rochester
Industrial Institution in 1907, and from
there to the Rome Custodial Asylum, at
Rome, where he is now confined. He has
cost the State while in its institutions, ap-
proximately $2,000, up to October 1, 1914,
and since that time has been an expense to
the State of about $175 per year. After a
careful examination by the board we have
learned that said Frank Osborn comes from
a family of degenerates. He is one of six-
teen children, eight of whom are dead. Five
brothers and sisters besides himself are con-
fined in State institutions for the feeble-
minded; one, a feeble-minded brother, lives
with a farmer and is intemperate, incapable
and untrustworthy; one sister, the brightest
of the family, lives with and keeps house
for a man to whom she is not married,
though she has a husljand living. She is
immoral and has been an inmate for two
years of a house of prostitution. Of his
dead brothers and sisters one died in an
institution for feeble-minded and seven died
before becoming one year of age. The
father of said Frank Osborn was feeble-
minded and the son of a man who was an
epileptic and who lost his mind before death.
Said Frank Osborn's mother is living, is
feeble-minded and comes from a family of
defectives. Her mother was feeble-minded
and one sister and two brothers of Frank's
mother were feeble-minded.
"The family of Osborn, from which
Frank Osborn comes, have always been a
charge to either the county or the State,
and they have cost the State approximately
$10,000 since they became State charges.
"The sources of our information are ex-
aminations of individual records, examina-
tion of said Frank Osborn and members of
his family, relatives and neighbors who
have been intimately acquainted with his
family during their lifetime.
"The said board have carefully examined
into said Frank Osborn's mental and phys-
ical conditon and it is the judgment of a
majority of said board that procreation by
said Frank Osborn would produce children
with an inherited tendency to feeble-minded-
ness, and there is no probability that his
condition will improve to such an extent as
to render procreation advisable. His phys-
ical condition is such that no harm will
come to him, so far as the board is able to
ascertain, from the operation." (From
Affidavit and Order appointing Counsel,
pp. 18, 19.)
From Testimony of Lemon Thomson for
Applicants — Direct, pp. 26-33. (See also
Chapter VII, Sec. V, New York.)
Q. Now, you are acquainted with a
young man by the name of Frank Osborn,
who is an inmate of the Rome Custodial
Asylum? A. Yes, sir.
Q. He is here in court now, is he? A.
Yes, sir.
Q. Do you recognize him? A. Yes,
sir.
Q. Did you make some examination of
Osborn? A. I did.
Q. When did you make an examination
of him, about when? A. Within the past
year.
Q. Did you make more than one? A. I
have examined him more than once.
Q. Did you make a careful examination
of him, A. I did.
Q. The examination you made of him
was both physical and mental? A. Yes,
sir.
Q. And did you make inquiry into his
family history? A. I did; quite exten-
sively.
Q. Did you inquire from others who
knew Osborn as to his family history? A.
I did.
Q. Did you e.xamine any other members
of his family? A. I did.
Q. State, will you please, doctor, what
members of his family you recall you ex-
amined? A. His mother, his sister, one
sister, Harriet.
Q. And did you make inquiry from them
about their family history? A. I did.
Q. As a result of this examination of Os-
born and his family history what did you
ascertain? If you can't recall, read your
notes. A. I am permitted to use my notes,
am I?
Q. Yes.
Casb and Kamii,y Histories of Individuals
307
Mr. Chambers. You (Mr. Frost) haven't
any objection to that?
Mr. Frost. No.
Q. I want you to state in detail just ex-
actly what you found both as to his history
and his family history. A. The informa-
tion I received came besides from his fam-
ily, from records, from neighbors, people
who had been acquainted with the family,
and from affidavits, records from societies
that had investigated Frank, as one of six-
teen children.
Q. Now just excuse me for interrupting
you. About what is his age, did you learn?
A. About 31. I think he is more than 31
now. I have his exact age. There are eight
living.
Q. Eight brothers and sisters, eight chil-
dren? A. Eight children, brothers and sis-
ters, living. Three are now confined in the
State Institution for Feeble-Minded at Syra-
cuse; Frank and his brother at the State In-
stitution at Rome; one is in the Institution
for Feeble-minded at Newark, N. Y.; one
formerly an inmate at the Industrial School,
the old school at Rochester, is now on a
farm at East Palmyra, where he was taken
by the father of the present man who has
him; one sister Harriet is living at New
Haven, N. Y., with a man not her husband.
She had been previously married, lived with
her husband for a few weeks. He enlisted
in the navy a few weeks after the marriage.
They had parted before the enlistment. She
then went to a house of prostitution in Syra-
cuse, remained there about two years.
From there she went to live with the man
she is now living with. This part of the in-
formation came from Harriet herself.
Q. Now, go right on, doctor, and state
any other information that you know about
the family. I might ask, is his mother
feeble-minded in your opinion? A. Yes, sir.
Shall I finish up with the children?
Q. Yes, go ahead. A. One child died in
the orphan asylum at Rome, one other died
in the institution for feeble-minded at Syra-
cuse. The mother is living at 419 East
Adams street, Syracuse. The father is dead,
died about 1903.
The mother some time afterward claimed
she married a man by the name of Van
Hueyser, who lives with her winters and
deserts her summers. She cannot write. She
can read a very little bit, very little.
Now shall I give you some evidence
which I get from records from the Society
for the Prevention of Cruelty to Children.
Q. Yes.
Mr. Chambers — Some of it may be hear-
say, judge.
Mr. Frost— Yes, but I do not regard this
as going to the merits of the question, and
assume the situation is as you represent it,
so I will not object to your giving what-
ever line you desire.
Q. Go ahead and give all you learned.
A. The mother's name was Aurilla Guern-
sey before marriage.
Q. G-u-e-r-n-s-e-y? A. G-u-e-r-n-s-e-y.
Shall I read right ofif here what I have
copied there?
Q. Yes, to save time. A. Copy of re-
port of S. P. C. C, Onondaga Orphan Asy-
lum, April 2, 1904.
Family of Aurilla Osborn, commonly
called "Rilly" Osborn, living in town of
Lysander on the direct road between Bald-
winsville and Lysander, "Fenner district,"
near northwest corner of Mud Lake. (This
gives seven children; there are eight.)
Fannie, about 17 years; James, about 15
years; Frank, about 13 years; Henry, about
14 years; Louise, about 8 years; Alice, about
9 years; Florence, about 5 years.
They are all "about."
Q. Now, you learned that there was still
another? A. There is still another, and, I
think, after I spoke about it, is mentioned
here.
The mother is the widow of Charles
Osborn, who died three years ago in a con-
dition of indescribable filth and neglect.
The mother is vicious, immoral, filthy in
person, truculent and a terror, nuisance and
offense to all the region about. The chil-
dren, three boys and four girls at home
(one of the girls, Hattie, away at work)
range in ages from 17 years to 5 years.
They have all been to school excepting the
youngest, but are so dull and careless and
unmanageable that they cannot learn any-
thing; none can read writing and in a very
labored and limited way can they read print.
They have come to school so filthy in per-
son and so foul smelling as to be unendur-
able and have been ordered out by the
teacher. Miss Grace Mason, who openly de-
clared that if they were not kept out of
school she, the teacher, would instantly quit
her job when they entered.
There is now one of the boys, Henry,
aged 14, so ill that he is likely to die any
hour. (I will say this one is the boy at East
308
Case and Family Histories of Individuals
Palmyra.) The physician attending, Dr.
Dout, of Lysander, says he is dying of con-
sumption, starvation and neglect. The
mother is so impotent and careless that he
gets no nursing, no food properly prepared
and even the nutriment provided by com-
passionate neighbors and the medicine left
by the doctor are given in a very uncertain
way. The mother is described as being not
only gravely ignorant and slatternly, but
ugly and dangerous as well when interfered
with. She is a short, stout woman.
Complaint was made by Mr. L. B. Russ,
a near neighbor, who was accompanied to
our office by Mr. A. B. Borden, another
near neighbor. They also refer to other
neighbors, F. W. Fenner and H. L. Hunt-
ington, school trustee, and J. W. losette.
The overseer of the poor, Hiram Patchett,
is willing to co-operate and will probably
consent to pay for the children in an insti-
tution.
The oldest girl, Hattie, is reported as be-
ing immoral The same fate, beyond a
doubt, awaits the younger sisters as they
approach maturity As an illustration of
their manner of living, Mr. Russ states that
they observe no decency or cleanliness.
They make no use of a closet, but make
convenience of the door yard, the floors,
the beds. Old bedding is sometimes thrown
out so rotten that it falls to pieces and is
an offense to passersby.
Osborh, the husband, is reported by nei^,h-
bors as having died in a wallow of filth in-
describable.
The family now receive a weekly allow-
ance of $3 from the overseer of the poor
for groceries, but nothing is properly cooked
or prepared and the wonder is how they
manage to live. They are very careless and
wasteful, sleep in their clothes, all in one
i-oom.
They have burned all the loose wood ob-
tainable, the cellar door and steps, the out-
house— have torn out the cellar walls in
pure mischief. In short, their indecencies
of living are almost beyond belief.
The nearest justice of the peace is Fred
H. Morgan, Little Utica.
Charles Edward Osborn, the father of
the family, has one sister, or had one sister.
(This should all have been in the past when
I say "has".) One sister living at Baldwins-
ville. One sister is dead. Charles was shift-
less, neglectful as to his personal appear-
ance, unable to accumulate before and after
marriage; was considered feeble-minded. He
was the son of a man who had epilepsy for
fifteen years previous to his death.
Aurilla, the mother, had four sisters and
three brothers. Two of the brothers are
markedly feeble-minded One died a little
more than a year ago. They had been men
who had worked for farmers, as they term it,
had done "chores" for their living. They
were bashful. The one who died was a
drinking man whenever any one woud treal
him, never having anything to buy for him-
self.
The other brother was respecta'bly con-
sidered, though he has had his experience in
taking things that did not belong to him
and had been arrested for it.
The sisters have nothing particular in re-
gard to them excepting one. One was re-
ported to be a "bad actor," were the words
given, or prostitute.
Q. No other proceeding has been
brought, doctor, since you have been a
member of this board to test the constitu-
tionality of this law that you know of? A.
No, sir.
Q. You have made no official operation
on any inmate of an institution? A. No,
sir.
Q. Now, did you learn that it cost the
State a good deal of money to support the
Osborn family in those institutions? A. I
did.
Q. Did you learn it cost the State ap-
proximately $2,000 to maintam Frank Os-
born in an institution? A. It has.
Q. And that it cost the State approxi-
mately $10,000 to maintain or have such
members of his family in institutions? A. It
has.
Q. (The Court) — Does cost them? A. It
has cost them and is costing them at present.
Q. That is, I mean cost the State or
counties, some of that was perhaps the
counties? A. A little of it the counties;
most of it the State. No record is made
of tlio cost to the several towns or to the
town of Lysander.
Q. Now from the examination which you
made of Osborn, is it your opinion that pro-
creation by said Osborn would produce chil-
dren with an inherited tendency to feeble-
mindedness? A. It is.
Q. Would you say whether his condition
will or will not improve after an operation?
A. I would say it would not.
Q. Is his physical condition such that no
harm would come to him from such an
operation? A. It is.
Case and Family Histories oe Individuai^s
309
Q. Now what kind of an operation, doc-
tor, does the Board contemplate performing
on him, if one is performed? A. Vasec-
tomy.
Cross-examination by Mr. Frost:
Q. Doctor, the case of Frank Osborn
was the first selection made by the Board
of Examiners in this State under the Act of
1912, for the performance of an operation,
was it not? A. We had considered several;
that was the one we selected among the
many.
Q. And did you make that selection be-
fore or after obtaining the information rela-
tive to his family and the history and habits
of his family? A We made it after; the
definite selection.
Q. (By the Court.) Excuse me, I didn't
understand that. You made it after the
definite selection? A. Yes, sir.
Q. You mean by that you made the ex-
amination after the definite selection? A.
No, sir, we made the examination of the
family histories
Q. (Interrupting.) After? A. Previous
to the selection.
Q. Oh, previous? A. Yes, sir. We
made the selection of Frank Osborn after.
Q. After you had examined him and
after you had inquired into his family his-
tory? A. Yes, sir.
Q. (By Mr. Frost.) At the time of thr
investigation into the family history of Mr.
Osborn there were confined in the Rome
Custodial Asylum about how many persons
whom you would classify as feeble-minded?
A. I think all of them classified as feeble-
minded. I think they have about some
1,300 approximately.
Q. What particular fact was it which led
you to select Frank Osborn as the first sub-
ject of the application of this law? A. A
good, big husky fellow, had lots of color,
and we have got to make a start.
Q. But you had already investigated his
family history, had you not? A. We had.
Q. Had you investigated the family his-
tory also of the other 1,300 or 1,400 pa-
tients? A. Oh, no.
Q. When you determined to take up for
consideration the selection of a subject for
the performance of this operation what was
your first step in making such selection,
that is, it was an examination of the family
history, was it not? A. The family history
and then the individual.
Q. And you first examined the family
history, did you? A. Yes, sir.
Q. And after an examination of the fam-
ily history then you made a physical ex-
amination of the subject? A. We did.
Q. Did the question of the family history
of the proposed subject bear any relation to
the probable effect upon his physical system
of the proposed operation? A. The history
of the family bear any relation to the phys-
ical effect?
Q. Yes. A. No, sir, I think not; no,
sir.
Q. Or any relation to the probable
mental effect? A. No, sir.
Q. Then the only relation which the
family history bore in the determination
reached by your board of the selection of a
patient was to get a patient who had a bad
family record, isn't that the fact? A. No.
Q. Well, now, what other relation then
did the family history have to the selection
of a patient? A. The selection of a patient
who could by no possibility procreate a
normal mental individual from the stock
from which he came.
Q. Then if you had a patient who was
feeble-minded to a degree equal to that of
Frank Osborn and you as a member of this
board had to determine the question whether
or not the operation should be performed
would you be influenced in your determina-
tion by the family history of that patient?
A. I would.
Q. So that the degree of feeble-minded-
ness which you may find in a patient will
not be the determining fact with you in a
question of this character? A. Not to start
with; would be more cautious; we don't
wish to get anyone that there could be. any
possible doubt as to his ability to precreate
normal individuals mentally.
Q. Well, did your board in making this
selection consider the question of the se-
lection of a patient with what may be
termed a bad family record? A. Why, not
particularly. We talked that over. We had
several to select from.
Q'. Well, didn't you as a matter of fact se-
lect a patient with a bad family record as
came under your observation? A. It is
bad enough.
Testimony of Charles Bernstein for Defend-
ant—Direct, p. 83-4.
(Superintendent of Rome Custodial Asylum)
Q. You know Frank Osborn here in this
proceeding? A. Yes, sir.
310
Cass and Family Histories oe Individuals
Q. And how long has he been in your
institution? A. I believe since April, 1907.
Q. Have you personal knowledge of the
work which he performs? A. Yes, sir.
Q. What does he do? A. At the present
time he works in the laundry sorting cloth-
ing, both before and after washing.
Q. Have you had him performing other
work? A. Yes, sir.
Q. Have you observed him to an extent
as to enable you to say as to whether or not
he will be able to earn his livelihood after
he got his freedom? A. He could not.
Q. What do you say as to his physical
condition? A. In general he is fairly well
developed physically, over-tall for his age
and weight.
Q. His health is generally good? A.
Yes, sir.
Q. What have you observed with refer-
ence to his ability to read and write? A. He
can read and write.
Q. What would you say vvas his present
age with reference to his mental develop-
ment? A. According to the Binet test about
eight years mental capacity.
Testimony of Frank Osbom — Direct,
pp. 111-115.
Mr. Frost — I would like the Court to ob-
serve Mr. Osborn and I will call him as a
witness.
The Court — Can the oath be administered
to him?
Dr. Bernstein — He doesn't appreciate
what it means.
The Court — Will you take his statement
without the oath?
The respective counsel so agreed.
The Court — I do not want to make light
of the oath. It is consented that Frank
Osborn be examined, but without being
sworn.
Frank Osborn, examined (not sworn),
testified:
Examined by Mr. Frost:
Q. What is your name? A. Frank
Osborn.
Q. How old are you? A. Twenty-two.
Q. Where do you live now? A. Syra-
cuse.
Q. Where did you come from today?
A. Rome.
Q. You came from Rome? A. Yes.
Q. Where do you stay in Rome? A. In
the institution.
Q. When you say you live in Syracuse
what do you mean? A. That is Ay home.
Q. And that is where your father lives?
A. Yes.
Q. And your mother? A. Yes.
Q. Is it your mother who lives in Syra-
cuse? A. Yes.
Q. And is it your own father who lives
in Syracuse? A. No, "stepfather.
Q. Stepfather? A. Yes, sir.
Q. Did you ever go to school, Frank?
A. Yes, sir.
Q. Can you read? A. A little bit.
Q. (Showing paper to witness.) Take
that newspaper and see if you can read
something to us, read up here in this cor-
ner (indicating), can you read that? A. (Ex-
amining same.) ^Yes.
Q. Read that. (Witness does not read
at first.)
Q. What does that say, Frank? Can
you read it? A. Yes.
Q. What does it say?
Mr. Chambers — Let him read it.
Q. Read it aloud, read it to us.
Dr. Bernstein — Read it. Don't be afraid.
Q. Read it to us or anything. Look at
the paper and find anything you can read
there and read it to us just a line or two.
A. (Reading same.) "Do you enjoy your
meals this hot weather? There is no reason
why you should not."
Q. Now, Frank, will you take a pencil
and sign your name right here to this paper,
sign your name right up there? (Witness
does so.)
Mr. Frost — Before I ask him that ques-
tion I offer in evidence so much of the mat-
ter printed in the newspaper as was read by
the witness, and reads as follows: "Do you
enjoy your meals this hot weather? There
is no reason why you should not."
Q. What is that you have written, Frank?
A. My name.
Q. And write under it your age? A.
(Witness does so.)
Mr. Frost — I offer this slip in evidence.
The same was received in evidence and
marked "3-J. E. K."
Following is a copy of same:
"Mr. frank Osborne
I be 22 this november 20."
Q. Do you know the days of the week,
Frank? A. Yes.
Q. Name them just, please. What is the
first day of the week? A. Monday.
Q. Go on, name the rest of them. A.
Tuesday, Wednesday, Thursday, Friday,
Saturday and Sunday.
Case and Family Histories of Individuai<s
311
Q. How many days are there in the
week, Frank? A. Seven.
Q. And the first one you say is what?
A. Monday.
Q. And the last day of the week is
what? A. Sunday.
Q. Do you know who the Governor of
the State of New York is? What is his
name? Do you know or can't you think
now, which is it, Frank? You don't know,
do you? (Witness shakes his head nega-
tively.)
Q. How much do you weigh? A. One
hundred and fifty-six.
Q. And how tall are you? A. Six foot
one.
Q. Can you add; do you know how to
add? A. Not very well.
Q. (Presenting same.) I show you a
paper. See if you can add those figures.
(Handing same to witness.) A. (Witness
does so.)
Q. Mr. Frost: I offer this slip in evi-
dence.
The same was received in evidence and
marked "3-J. E. K."
Following is a copy of same:
"4643
3122
7764"
Q. Did you ever work -for anyone who
paid you by the day or by the week for your
work? A. No, sir.
Q. You never did that? A. No, sir.
Q. Do you know how much a man gets
for working on a farm? A. No.
Q. You don't know whether he gets a
dollar a day or $2 a day or $5 a day?
A. No, sir.
Q. Didn't anyone ever tell you? A. No.
Q. You haven't any idea how much he
gets? A. No.
Q. How many cents are there in a dollar?
A. One hundred.
Q. If you had half a dollar that would
mean how many cents? A. Fifty.
Q. And if you had a quarter that would
mean how many cents? A. Twenty- five.
Q. And if you had three quarters in your
pocket how much money would that be?
A. Seventy-five.
Q. And if you had a dollar and you paid
twenty-five cents for some cigars, how much
money would you have left? A. Seventy-
five.
Q. And if you paid forty cents for cigars
out of a dollar how much would you then
have left? A. Sixty- five.
Q. How much? A. Sixty-five.
Cross-Examination by Mr. Chambers:
Q. Let me ask you a few questions, you
needn't be afraid because nothing is to be
done here except ask you questions: Frank,
do you know what this is that we are doing
here? A. No.
Q. Did you read something about it in
the paper? A. Yes.
Q. You did? A. Yes.
Q. Did you know what kind of an opera-
tion was going to be performed? A. I didn't
understand what it was going to be.
Q. If you don't understand it you don't
know whether you want it done or not?
A. No.
Q. Is that it? (No answer.)
6. PEARLEY C. MICKLE, Moral Pervert.
Case originated in the District Court of
the Fourth Judicial District, Elko County,
Elko, Nevada.
The only evidence relative to the per-
sonality and pedigree of Pearley C. Mickle
is that which is secured from the court
record. After this man had been declared
guilty of rape, the following examination
took place:
From the Minutes of the District Court of
the Fourth Judicial District of the State of
Nevada, in and for Elko County. (See also
further evidence in Chapter VII, Sec. VI,
Nevada.)
Court: Have you any legal cause to show
why judgment should not be pronounced
against you?
Defendant: No, sir, I haven't.
Q. Is there anything you want to say, Mr.
Mickle?
A. No, sir.
Q. Will you state how old you are?
A. Nineteen.
Q. Have you the discharge papers show-
ing his age?
Carville: Twenty- two; he was born in '93.
Defendant: I enlisted when I was fifteen,
but enlisted as eighteen. My mother and
father has the birth certificate.
Q. Your folks are living, Mr. Mickle?
A. Yes, sir.
Q. Where do they live?
A. Mother lives in Portland, Oregon, and
father in New York.
Q. Will you state what your father does?
A. A wagon maker.
Q. Your mother is a good woman, is she?
A. Yes, sir.
312
Casb and Family Histories of Individuals
Q. How did you come to commit such a
crime as this?
A. By drinking steady and was just
sobering up. When I am sobering up it
drives me crazy. Whiskey and wine puts
me off my head.
Q. You mean to say you were just sober-
ing up after having been drunk?
A. Yes, sir, just sobering up.
Q. Have you ever done anything of this
kind before?
A. No, sir.
Q. Anything like it at all?
A. No, sir, your Honor.
Q. Have you always been a healthy
person?
A. Yes, sir.
Q. Did you ever have fits of any kind?
A. Epileptic fits.
Q. Do you wish to vouch to me for that?
Do you assure me that it is the truth?
A. Yes, sir, that is the truth; I can prove
it.
Q. How long since you had one?
A. The last one I had was last March.
Q. How many have you had?
A. I have had ten, I guess, in the last
four years.
Q. Anything like that in your family
before, your father or mother?
A. Not that I know of. I have a cousin
that has them.
Q. You don't claim to be insane, do you,
Mr. Mickle?
A. No, sir.
Q. You don't pretend to be crazy?
A. No, sir.
Q. Well, now, I want to be perfectly fair
with you. A man in your condition is under
a strong temptation to "tell lies.
A. I am not telling any lies, your Honor.
I am tell the straight truth.
Q. Sometimes a man tells a lie when he
thinks it will help him, when it is against
him and that may be the case with your
epilepsy.
A. I can prove that.
Q. Would you make that statement that
you have epileptic fits if you knew it was
going to hurt you with me instead of helping
you?
A. No, sir, I wouldn't.
Q. You mean you would tell a lie about
it if you thought it would help you with me?
A. No, sir, I wouldn't.
Q. Perhaps you do not understand me.
Supposing you knew by telling me you had
epileptic fits that I would punish you more
than I would otherwise. That might seem
strange to you, but supposing you knew
that, would you still say you had them?
A. I have. That is the truth; hope to
God to die.
Q. Of course, Mr. Mickle, I wouldn't
have you understand what the punishment is,
but I don't mean to say when I remind you
the Court might inflict the death penalty on
you, because the Court cannot do it in this
case, but it might affect you injuriously in
some other way. And no matter whether it
does or not, yofi still say that is the truth?
A. That is the truth; hope to God to die.
Q. Is there any place I could investigate
your father or mother, or anybody else you
would be willing to have me inquire of
whether this is true or not?
A. Yes, sir.
Q. Will you tell me their address?
A. Yes, sir, Mrs. Jennie Pounds, Ceres,
New York.
Q. Is that a small town or village?
A. A small village.
Q. You don't need any street address?
A. No.
Q. Is that you mother?
A. My aunt.
Q. She knows that you had fits?
A. Yes, sir, I was there last March when
I had these fits.
Q. And she is living, so far as you know,
at this time?
A. She is living, as far as I know, at this
time.
7. WARREN WALLACE SMITH, Moral
Pervert. An inmate of the State Re-
formatory at Jeffersonville, Indiana.,
Case originated in the Circuit Court of
Clark County, Ind.
Neither the Reformatory nor the Board
of Examiners, who selected Smith as the
subject of the test case, made any serious
attempt to secure Smith's family history in
accordance with the common eugenical prac-
tice, for the purpose of throwing light upon
the hereditary traits of the subject. This
essential task, however, was accomplished by
private enterprise, which had the hearty sup-
port of all parties concerned in the case.
Dr. A. H. Estabrook, scientific investigator
on the Staff of the Eugenics Record Office,
after consulting' with the authorities of the
Reformatory at Jeffersonville, with the attor-
neys in the case and with the family of the
subject, reported the following:
Case and Famii,y Histories of Individuals
313
a. Abitraot,
Notes resardlng Warren Wallace Smith, Test
Case for Indiana Sterilization Law. Born 1903,
Indiana Reformatory No. 10734, rated as men-
tally dull, physically fair, sentenced to Indiana
Reformatory 2-13-19, term two to twenty-one
years for Incest; received at Reformatory same
date. Conviction In Wayne County (Rich-
mond). Warren probably born Henry County,
second grade schooling, never attended church,
left home about the age of 16, occupation
laborer; previous arrest for petty larceny. His
father, Henry Smith, belongs to the Mission
Church, pecuniary condition, poor; mother,
Lena K. Smith, also member of the Mission
Church, father and mother being separated.
Warren has one half-sister, Letha Marie, born
11-18-07; on 6-19-16 made a ward of Shelby
County, Board of Children's Guardians; 5-B-17
placed out in private home; 3-28-18 returned
to father; immoral relations with brother
Warren, and on 2-8-19 committed to Wayne
County Board of Children's Guardians, and
transferred from there same date to Indiana
Girls' School. Brother Arthur C. Smith born
n-10-09, sent to Shelby County Orphans' Home
6-19-16, same time as sister; returned 3-20-lS
to father; 2-8-19, at time of breaking up of
family because of Incest charge against War-
ren, made ward of Wayne County Board of
Children's Guardians; transferred 2-27-19 to
White's Institute, correctional Institute for
juveniles (private organization); 8-30-19 re-
turned to parents; 9-2-19 placed In private
home; 4-8-20 sent to Home for Friendless and
Orphans' Home in Richmond, Indiana.
Smith was selected as subject for steriliza-
tion case merely because he came under the
classification of rapist In sterilization law of
1907; that he was not selected because of
feeble-mlndedness, although he Is probably a
high-grade imbecile, and neither was he se-
lected because a member of a feeble-minded,
degenerate, anti-soclal family of the State.
Smith has had a normal record at the insfl-
tutlon, is employed at outside work, unskilled
labor, caring for lawns, etc., about Institution.
He is not able to carry responsibility at any
time, and his parole from Institution will prob-
ably be a matter of form after his minimum
sentence has been carried out. He was placed
in school for a time, but It was found of no
use. The chaplain states that he has not been
unmanageable In any way.
b. Detailed Family History. (See Family
Pedigree Chart, p. 313A.) Warren Wal-
lace Smith, the Subject of the Test Case
of the Indiana Sterilization Law.
Governor James P. Goodrich of Indiana,
during his term of office, 1917 to 1980, had
felt that the provision of the Indiana steriliza-
tion law should be carried out in the dif-
ferent State institutions where applicable.
TKe trustees of the Indiana Reformatory on
the other hand had decided to discontinue
the sterilisation of certain Reformatory in-
mates on the ground that they thought the
law- unconstitutional. Hence Governor Good-
rich decided that the validity of the law
should be determined and requested the Re-
formatory officials to start a case, and
secured Wilmer T. Fox, of Jeffersonville,
Ind., a practicing attorney, to act as attorney
for the plaintiff to enjoin the sterilization
and follow the case through to the Supreme
Court of Indiana. This study of the Smith-
Kisker family was made because Warren
Wallace Smith, age nineteen, was chosen as
the subject in the test case in the Clark
County Circuit Court to decide upon the
constitutionality of the Indiana sterilization
law.
1. THE SMITH FAMILY (PATERNAL
LINE).
Warren Wallace Smith, 10734, at the In-
diana Reformatory, was selected for the
following reasons: He had been convicted
of incest with his half sister, "The inability
of this boy to comprehend the wrongfulness
of such an act, and his tendency for sexual
intercourse by consent or forcibly, seemingly
making no difference to him. His behavior
while at the Reformatory was that of a
weak-minded boy, he having no conception
or regard for the rules of the institution.
His mental age is about eight years." — Letter
of G. A. H. Shideler, Superintendent of the
Indiana Reformatory, 7-29-1921. Warren
was received at the Reformatory on February
13, 1919, for two to twenty-one years, on
the charge of incest, from Wayne County,
and was transferred as No. 8535 to the In-
diana State Prison on May, 1931. ,
In view of these facts it seems desirable
to know something of the family history of
this boy, to ascertain whether he is a member
of a defective strain of people and the inci-
dence of mental defectiveness in the family
group.
Warren Wallace Smith was born about
9-13-1902, in Henry County, Ind., though
there is a dispute as to the exact date. It is
stated that at the time of the birth of the
child, the mother had a severe epileptic
seizure but that the birth otherwise was
normal. He was always dull and apathetic
as a child. His mother died when he was
about three years old and although his
father married again shortly and kept a home,
Warren lived around with his relatives a
larger part of the time. His aunts who have
had the care of him, say that Warren is not
314
Case and Family Histories op Individuai,s
difficult to control. He attended school for
a time but he could not learn and never went
beyond the second grade. As he grew older
he was in trouble several times, accused of
annoying people on the streets, petty larceny,
etc. At that time it was suggested to War-
ren's father by the authorities to have him
sent to the Indiana School for the Feeble-
minded at Fort Wayne but the father ob-
jected and nothing came of the suggestion.
Warren was then twelve years old. He has
never been employed. At seventeen, War-
ren was arrested for incest with his half-
sister then twelve years old. This relationship
had been going on for about four months
previous to its discovery. Warren was then
committed, 2-13-1919, to the Indiana Re-
formatory for two to twenty-one years and
received at the Reformatory the same date.
On April 30, 1921, he was transferred to the
Indiana State Prison along with about three
hundred others from the Reformatory. At
the same time that Warren was sent away
his sister, Letha Marie, was sent to the In-
diana Girls' School.
Warren's mother, Lena Kisker, born 1884,
Terre Haute, had some schooling and could
read and write. At the age of thirteen she
had convulsive seizures accompanied by loss
of consciousness and these attacks were soon
recognized as grand-mal epilepsy. These
occurred from the age of thirteen on, as
many as several attacks in a week at times.
After marriage, which took place at the age
of sixteen, they were not as frequent. She
married Henry Smith and had by him two
children, Warren and Marion, born 1904, who
died of summer complaint at the age of six
months. Marion was dull as a baby and paid
no attention to anything. Lena died at the
age of twenty of typhoid fever, in 1904. She
was then living near Spiceland, in Henry
County, Indiana. It is said that Lena was
a good housekeeper and took good care of
her children and always bore a good reputa-
tion.
Henry Smith, the father of Warren, was
born about 1879 in Indiana. He had a little
schooling of several months, and can neither
read nor write. He has always worked as a
common laborer and has been steadily em-
ployed all his life with the exceptfon of the
present time. Now, 1921, he is buying a
house and lot on payments at 1009 S. J. street,
Richmond. Due to lack of work this past
summer he has fallen behind on payments
but hopes to make this up as soon as he can
get work. He has always had a good repu-
tation for honesty and general character.
Henry has a mental age about ten years, is
industrious, has some planning ability and
foresight, a desire to do well and be re-
spected. He has some comprehension of the
mental condition of his son, Warren. He
has always lived in either Henry or Wayne
Counties, Indiana. His first wife was Lena
Kisker and he married her when he was
twenty years old. After her death, five years
later, he married Edna Lamb, of Dunreith,
born 1892, with some schooling, a hard
worker, married at the age of fifteen, having
two children by Henry and dying at the age
of twenty, in 1912. These two children are
Letha Marie, and Arthur Smith. The girl,
born 11-18-1907, in Henry County, Indiana,
was sent at the age of nine to the Shelby
County Orphans' Home as a ward of the
court because of no home. On 3-20-1918
she was returned to her father. Some time
after this incestuous relations began with
her half-brother, Warren, as stated above.
After this had been discovered Warren was
sent to the Reformatory and Letha Marie
to the Indiana Girls' School, 2-18-1919, where
she is at the present time. At the age of
fourteen she tests thirteen years and six
months mental age, is somewhat emotional
in her reactions and seems mentally capable
of high school training. The boy, Arthur,
born 11-8-1910, was sent to the Shelby
County Orphans' Home, 6-19-1916, at the
same time as the sister, Letha. On 2-20-1918
he was returned to his father with whom he
remained until he was sent to the Wayne
County Board of Children's Guardians at the
time of Warren's arrest and conviction. He
was immediately transferred to White's Insti-
tute at Wabash, Ind., a semi-correctional
private mstitution for children. He was later
placed in a foster home and on 4-20-1920,
returned to Wayne County Board of Chil-
dren"s Guardians and then to the father,
where he now is. At eleven he is in grade
4A in the Hibbard School, Richmond.
Henry's third wife was Florence Riley, born
1 890, daughter of William Riley of Stricklett,
Lewis County, Ky. Her first husband was
Charles Smith, brother of Henry, whom she
is supposed to have divorced. She had one
child by Henry which died. About 1916 she
left Henry, taking her children with her and
lived with another man as his wife. It is
not known where she is at the present time.
Nothing is known of the specific traits of
Florence other than that she was "from Ken-
tucky, and bad."
Casu and Family Histories op Individuai^s
315
Henry's father, John Smith, paternal
grandfather of case, born 1854 in Kentucky,
has been a day laborer all his life. At one
time he owned a small farm near Dunreith,
which was sold at the time of his wife's
death. He is uneducated and ignorant, but
so far as is known was never in trouble and
has always borne a fair reputation. His wife
was Dulcina Scarboro, born 1861, Madison
County, Ky. She was a woman of no educa-
tion, unable to read and write, married young
and always poor. She had ten children by
John Smith and died at the age of 55 of
strangulation of the bowels. The children o!
John and Dulcina besides Henry are Hulda:,
Minnie, Charles, Eva, Ezra, Elizabeth and
Lillian.
Hulda, aunt of the case, born 1882, is a
woman of no education, has worked hard all
her life and at the present time does plain
dressmaking. She keeps a neat house and
maintains a fair standard of living. It is
reputed that her one living child is illegiti-
mate, having been born before she came to
Ingalls, Ind.; and before she married Bert
Lockridge, of Greensboro, her first husband.
Hulda, however, states that Luva is the child
of Bert. Her first husband, Bert, a follower
of shows, died of tuberculosis soon after
marriage. Her second husband, Oscar Strat-
ton, was a common laborer, somewhat
intemperate, and was the father of four boys
by her, all of whom died young. These two
later separated and a divorce was secured,
Hulda later marrying James Byser, a laborer
and at present a shoe cobbler, by whom she
has had no children. They live at 1415 South
18th street, Newcastle, Ind. Hulda's one
child, Luva, takes the name Stratton, and
was born in 1901. She attended school
through the eighth grade when her health
became poor and she stopped. She has
worked at the piano factory in Newcastle
tuning pianos in process of manufacture and
has studied music, especially the piano. She
is bright mentally and has a quiet, refined
manner which seems out of place in the
home of her mother and not at all like her
unpolished mother and step-father. She lives
with her mother in Newcastle.
Minnie, the next child of John and sister
of Hulda, paternal aunt of the case, born
1884,' is an ignorant, somewhat apathetic
woman who has worked hard all her life. She
married, when young, Luther Tungec, a
laborer, and both have worked out since
then and have made a poor living. It is
stated that Luther, the husband, has been
intemperate and treated his family poorly,
They have three children; a boy, nineteen,
slow in school, working now in the Hoosier
factory in Newcastle, but not very promising,
and two girls, one fifteen in the first year
high school, and one twelve in the sixth
grade in the regular school in Newcastle.
They live at Stop 30 on the Newcastle Trac-
tion line, about two miles west of Newcastle.
William, a barber, an ignorant, semi-efii-
cient man, in Port Clinton, Ohio, is the next
child of John Smith and uncle of the case.
He married Ida Kisker, a sister of the woman
his brother Henry married. He has seven
children, described under Ida, the wife, in
the Kisker description.
Charles, the next son of John and brother
of Hulda, paternal uncle of case, born 1887,
is a barber by trade. He now resides at
1173 Warman avenue, Indianapolis. His first
wife was Florence Riley, by whom he had
two children, one Parma Irene, about nine,
still living, the other one being dead. Flor-
ence left Charles for his brother Henry.
After a divorce he married Hazel Hines with
whom he is at the present time. Charles had
little schooling and outside of his unsuccess-
ful marriage, the first time, has borne so far
as known a fair reputation though he has
only had a fair standard of living in his home.
He has no children by his second wife.
Eva, the sister of Charles, and paternal
aunt of case, born about 1890, had some
schooling, married when young and has had
two children. She has attended church in
Newcastle and has borne a good reputation.
She is mentally slow, has had little school-
ing and is not of a high grade of intelligence.
The husband, Ralph Arnold, is a laborer and
is now living at Indianapolis with the
brother-in-law, Charles Smith. Their oldest
child, now eight, is in grade three in school.
Ezra, the twin of Eva, is an unindustrious,
shiftless fellow with little education. He was
a soldier during the World War. He has
recently married but does not get along well
with his wife, and it is reported that he is
disagreeable to her and they have continual
quarrels. He lives in Fremont, Ohio, where
he works as a laborer when employed.
Elizabeth, born 1893, sister of Ezra and
Henry, aunt of case, is recognized by her
own family and others as mentally defective
and irresponsible. She has been married
three times, but as her brother says, "Her
husbands just won't stay with her." She
has been associating lately with a fourth man
and has left Newcastle, her last home, about
316
Case and Family Histories of Individuals
a month ago with this fourth "husband" and
gone to Port Clinton, Ohio, to stay with her
brother, William. She has been doing house-
work for the past few years in Newcastle
but is shiftless and has no ambition. She
has been under treatment the past year in the
Public Health Clinic for venereal disease and
is known as a prostitute in Newcastle.
Lillian, born 1899, Indiana, the last child
of John Smith, aunt of case, is a weak-willed
woman of little education and intellectual
ability. She married at nineteen a young
man of twenty who had no property and was
a discharged soldier, with tuberculosis. She
now has one child by him, aged two years.
They live on his disability pay of $95 pet
month from the government and he takes
no interest in the rehabilitation work offered
him by the government, thinking it easier
to get along with just his allowance. They
live in Newcastle, Indiana.
Summary of the Paternal (Smith) Branch.
The Smith family group shows a degree
of intellectual development slightly below
the average of the general population. The
earlier generation has had little schooling
but the last has and in general is doing fair
work in the schools. The industrial level of
its members has been low. The Smith family
has two defectives: Elizabeth Smith Ken-
dall, a high grade moron, and Warren W.
Smith, a low grade moron. The incidence
of defectiveness in the Smith family is low
and there are no particularly undesirable
mental traits appearing in any strength. This
Smith family then cannot be considered a
cacogenic group to the extent that its germ
plasm should be cut off. As will be seen
later, it is probable that Warren's condition
was the result of the nervous taint in the
mother's family added to the low average
mental and nervous makeup of the Smith
group. The other case of mental defective-
ness in the Smith family is probably inci-
dental in that type of germ plasm which is
so near to the border line mentality as that
presented here.
2. KISKER FAMILY (MATERNAL
LINE).
On the case's maternal side, the Kisker
family is much like the Smith family in its
general social and intellectual level. Lena
Kisker, as stated earlier, is the mother of the
subject of this sketch. She was born in 1884
and later had some schooling. She developed
epilepsy at about the age of thirteen and died
at twenty, as stated. Both her parents were
born in Germany. They were married in
Germany and came to this country after the
birth of their second child.
Fred Kisker, Lena's father, maternal
grandfather of case, was born in 1854 in Ger-
many. He had little schooling but could
read and write. He came to this country
about thirty-seven years ago and here worked
as a day laborer. He has always been con-
sidered "eccentric, peculiar and hot-tem-
pered and irritable, pig headed." In 1904 he
was committed to the Indiana State Hospital
for the Insane at Richmond, diagnosis:
paranoia, and is still in an asylum; at present
he is in the Central Hospital at Indianapolis.
His wife, Anna Fox, born 1859, in Germany,
married there and came to this country later.
She uses the English language readily but
with a German accent. She has some school-
ing and can read and write. She has always
worked and for the last twenty years, since
her husband has been in the hospital for the
insane, has done housework and taken in
washings to support herself. She is small
in stature and thin. She is of fair intellectual
mental ability but slightly below the average.
She now lives around with her various
daughters in Anderson, Ind., and has done
this for the past twenty years. The oldest
Kisker child was born in Germany. She
came to this country when young and re-
ceived some schooling in this country. Anna
married at about the age of seventeen Alvin
Bloomer, born 1870. He was a laborer and
farm hand and very intemperate. He has
separated from his wife several times but
has always returned to her. During these
separations he has associated with other
women and about ten years ago acquired
syphilis. Two years ago he became irritable,
depressed, and unable to work. On 1-27-
1921, he was admitted to the Madison County
Poor Asylum as "epileptic" though the condi-
tion existing then was the beginning of
general paresis. On 5-9-1931, he was sent
to the Central Hospital for the Insane at
Indianapolis as a general paretic and is still
there, deteriorating very rapidly. Alvin was
a fair provider in his home when not drink-
ing. Anna, the wife, therefore, has always
worked taking in washing and doing house-
work for the support of the children. She
has led a hard life, always poor but has
borne a fair reputation and now keeps her
house quite neat considering her lack of ade-
quate support. Recently, October, 1981, her
children were made wards of the court of
Madison County and the Board of Children"s
Guardians of that county is giving $30.00 of
Case and Family Histories oe Individuai<s
317
relief per month to the mother for the care
of these children in her own home. She
lives at 916 Laurel street, Anderson, in a
house badly in need of repair, and is paying
$9 rent a month. She is a woman slightly
below the average in intellectual ability. She
has six children. The oldest, Bernice, born
1900, was a prostitute at fourteen and con-
tinued so until her marriage in 1919 to
Robert Huntsberger of Kokomo, where she
now lives. Since marriage she has borne a
good reputation. She attended school until
the fifth grade but after leaving school has
not worked except at short periods. The
next child, Roscoe, born 1906, is in the 6A
grade in school in Anderson but is capable
of only average 5A grade work. He is irreg-
ular in attendance, due to frequent illnesses,
is mentally slow and somewhat listless. It is
evident that this boy needs medical attention
and treatment. The other children of Anna
are William, born 1913, grade 3B in school,
with poor eyes; Harold, born 1914, grade 2B;
Marion, born 1915, and Lawrence, born 1917.
These last five children are now wards of the
MTadison County Board of Children's Guard-
ians and live with the mother at 916 Laurel
street, Anderson, Ind.
Mary, maternal aunt of case, born 1882,
Germany, is the second child of the Kiskers.
She is an active woman, the smartest of the
family and stands out among them as being
of average intelligence. She has had some
schooling, is industrious and has planning
and managing ability. She married when
young Albert Abrams of Anderson, and has
had four children by him. In recent years
they have had marital difficulties and after
his discharge from the army in 1919, she
secured a divorce from him. She now sup-
ports herself by taking in washing and the
care of boarders and maintains a very fair
standard of living and keeps herself and
family neat and clean. Her children are:
Bessie, born 1902, married to Eugene Reed
of Anderson, but now separating from her
husband; Merle, born 1905, at work; Willis,
born 1909, grade 5 in school, and Viola,
born 1912, now in grade 3- in school. They
live at 1009 Central avenue, Anderson, Ind.
Ida, the next child of Fred and Anna, ma-
ternal aunt of case, born 1889, can read and
write but has had little schooling. She is
below the average mentally and her standard
of living in the home is very poor. She mar-
ried when young William Smith, already
mentioned, an industrious but semi-efficient
man of mediocre intellectual ability. They
have seven children. The oldest, Gladys,
born 1905, is unable to do fair work in grade
five, is slow mentally and not interested in
school work. At sixteen she is on the streets
at night with men and boys in Port Clinton,
Ohio, her home. Violet, born 1907, is below
the average in school work, being in grade
4A at the age of fourteen. She, too, is asso-
ciating promiscuously with boys on the
streets at night. Edgar, born 1911, is doing
poor work in school in grade 3B while his
next younger sister, Doris, age eight, is doing
average work in grade 3B now. The other
children are small. They are all with the
parents in Port Clinton, Ohio.
The last three children in the Kisker family
are boys: Ernest, John and James Edward,
maternal uncles of case. Ernest, born 1891,
is a tall, thin young man now learning the
plumbing trade as a helper. As a young
boy he had "mad spells or fits" but he seems
now to have outgrown them. He had some
schooling. He has been a laborer until
recently. He is now with his sister, Mary,
in Anderson, John, born 1895, was a soldier
in the last war and now is working as a
laborer in a gravel pit near Anderson. He
recently married but is separated from his
wife. James, born 1897, the last of the
Kisker fraternity, was also in the army and
is now working as a day laborer. The boys
spend their money freely and recklessly and
do not assist their mother who has no sup-
port other than what she earns. None of
these boys has ever been in trouble or
arrested so far as known.
Summary of the Maternal (Kisker) Branch.
The Kisker family has a mediocre grade of
intelligence much like that of the Smith
family. The mental and nervous disturbance
in this family shows in the grandfather, a
paranoic, one daughter, an epileptic and her
feeble-minded child. No other nervous or
mental disease appears in this group. The
disease conditions here are very circum-
scribed and apparently not carried exten-
sively in the germ plasm as no other defects
appear outside of the three mentioned.
Eugenical Findings.
The Smith-Kisker group then has four
cases of extreme mental defectiveness in a
total of 47 persons, or a rate of 8 per cent
of mental disease, only four times the
amount of defectiveness in the general popu-
lation. From the eugenic viewpoint then it
would be a question whether the germ-
318
Casu and Family Histories of Individuals
plasms of this group should be cut off. Con-
servative restriction of the reproduction
should be carried out only in those germ-
plasms which are giving forth a large per-
centage of defectives, on the average, much
larger than that found here in these peoples.
It seems certain that the cutting off of the
germ-plasm is recommended from the scien-
tific standpoint, and expedient from the
public view only when a family is reproduc-
ing practically all mental defectives.
Author's Wote: This family history investi-
gation is typical of the scientific studies that
should be made, and required by law as a
matter of routine in connection with every
case proposed for eugenical sterilization. This
sort of study for the purpose in hand, namely,
the determination of the kind and degree of
hereditary degeneracy possessed by the propo-
situs, is also equally Important as a factor in
scientiflc psychiatric diagnosis, which Is a pre-
requisite to commitment to custodial institu-
tions.
The author does not agree with Dr. Bsta-
broolj in reference to his extreme conserva-
tism. Dr. Estabrook thinks that, given inferior
family stock, four times the average frequency
of family degeneracy found in the population
as a whole is insufficient to Justify the eugen-
ical sterilization of an individual who is a
feeble-minded moral pervert. The author,
too. Is very conservative in these matters,
but he feels that Dr. Estabrook's criterion is
much too,low. The difference is this: Esta-
brook's standard for eugenical sterilization
Is a degenerate from 100 per cent degen-
erate near kin. The author's criterion is an
individual proven by pedigree analysis to be
a potential parent of offspring, at least 25 per
cent of whom would be hereditary degenerates,
or at least 50 per cent of whom would be
carriers of degenerate blood. It is the duty of
the law and the court to determine the kind
and degree of degeneracy which should
constitute the criterion for eugenical steriliza-
tion. Radicalness of selection is Justified only
in proportion to the supply of adequate scien-
tific pedigree investigation in the particular
case. (See Sec. 2f Model Sterilization Law,
p. 445, and Chapter XI Eugenical Diagnosis,
pp. 362.)
8. JACOB CLINE a moral pervert and
rapist, inmate of the Oregon S'ate Peni-
tentiary at Salem, Oregon.
Records, so far as they pertain to the family
history and pedigree of the subject, are very
•scant. Jacob Clinc had been convicted of
rape and sentenced to serve from 4 to 10
years therefor at the Oregon Penitentiary,
and subsequently was ordered by the State
Iloard of Kugcnics to f)f vasectomised under
the provisions of Chapter 379 of the General
Laws of Oregon of 1917. This order was
issued on the evidence of his personal, con-
stitutional, degenerate make-up.
The official description of Jacob Cline as
secured from the Oregon State Penitentiary
follows:
OREGON STATE PENITENTIARY.
Description of Prisoner. No. 7,939.
Name: Jacob Cline. Received: June 1, 1919.
Alias: None.
Crime: Rape. County: Douglas. Sen-
tence: 4 to 10 years. Age: 64, Color: Wlhite.
Complexion Liprht. Eyes: Blue. Hair: Grey.
Weight 140. Height: 5 feet 5 inches. Build:
Medium. Occupation: Farmer and preacher.
Nativity: Oreg'on. Parentage: .-Xmerican.
Live in Oregon: Life time. Education: Poor.
Married or single: Married. Creed: Pro-
testant. Name and address of relatives: Mrs.
Jessie Cline (wife) Glendale. Oregon. Phy-
sical condition: Good. Disease or infirmity:
None. Financial circumstances: Fair. Con-
jugal relations: Pleasant. No. of children:
Two. Character of Home: Good. Age -when
left home: 37. Character of associates:
Good. Age at death of father: 33. Age at
death of mother: 5.5. Nativity of father:
Pennsylvania. Occupation of father: Car-
penter. Financial condition of father: Fair.
Character of father: Good. Education of
father: Poor. Religion of father: None.
Nativity of mother: Ohio. Occupation of
mother: Housewife. Financial conditon of
mother: Fair. Character of mother: Good.
Education of mother: Poor. Religion of
mother: Adventist. Conjugal relations of
parents: Pleasant. Relatives or ancestors
intemperate: No. Relatives or ancestors
delinquent or deficient: No. Criminal Record:
Apparently none. Temperate: Yes. Use
tobacco: No. Use drugs: No.
Statement of District Attorney, Douglas
County, Based Upon the Report of the
Parole Officer of the Oregon State
Penitentiary.
To the Parole Officer,
Oregon State Penitentiary,
Salem, Oregon.
"My dear Sir:
Tn compliance with Section 6, of our
Parole Law, I am writing you for informa-
tion concerning Jacob Cline, who was com-
mitted to this institution from your county
May HI, 1919, to serve a 4 to 10 years' sen-
tence, convicted of rape. You are in a
position to know many things about this
man which will be of great importance to
CasB and F*amily Histories of iNDiviDUAts
319
us to deal wisely and justly with him. We
are making this request of you while the
facts are fresh in your mind, and will file
this report, which will be of special value
when the question of parole or executive
clemency comes up.
Will you please give us, as you are able,
your personal knowledge of this prisoner,
his family, his habits of life and his past
reputation?
'Moved to Douglas County about 10 years
ago. Prior to that time lived near Portland,
Oregon. Claims to have become converted
and was called by the Spirit of God to preach
the Gospel to the populace, and therefore
frequently has taken extended trips to preach
his doctrine called "The Crooked Way Made
Straight." He was divorced from his former
wife and his grown children left him.'
Give, please, a brief statement of his crime.
'Married a second wife and when he moved
to Douglas County he adopted Maude May
Morris from the Oswego Catholic Home,
an orphan about 5 years old. Shortly after
he moved to Douglas County he began to
abuse the little girl's body, and when she
reached the age of 9 he first had sexual inter-
course with her. and then continually until
she became 16 years of age, telling her that
it was not wrong in the eyes of God to do
this, and exerpised complete control and
management over the little girl during this
time. Was convicted by a jur}^ after a most
vigorous defense by his counsel.'
Are there extenuating circumstances in
either side of his case?
'There are none. It appears that his own
daughter by his first wife was taken from
him when she was 12 years old and sent to
the Boys and Girls Aid Society, for th^
reason that he had occupied the same bed
with her. However, this statement is pur-
ported to have been made by the defendant
himself. The evidence showed the mos'
depraved acts committed by the defendant
upon this little girl, and that from the time
that she was about 7 years old until she be-
came 13 or 13 he slept with her at different
times. He has two children by his second
wife, two boys, ages 7 and 9 years, respec-
tively.'
In your judgment, should he be given a
chance at the expiration of his minimum?
'No, for some other little girl will fall a
victim to his lust.'
(Signed) GEORGE NEUNER, Jr.,
District Attorney.
Report to Parole Board, State of Oregon.
(Required by Section 1, Chapter 302, page
624, General Laws of Oregon, 1917.)
In Re: State of Oregon vs. Jacob Cline.
State of Oregon, |
County of Douglas, f ^^■
I, J. W. Hamilton, Judge of the Circuit
Court of the State of Oregon for the County
of Douglas, before whom (Jacob Cline) was
convicted of the crime of rape and was
sentenced to the Oregon State Penitentiary
for a term of not less than (4) years nor
more than (10) years, submit the following
data relating to the history of said prisoner
and his crime:
Personal Characteristics, Moral, Mental,
Physical; He is some sort of a preacher.
Seems to be a man fairly well educated. An
attendant of church and Sunday school. He
is 65 years of age.
Names, Addresses, General Character of
Closest Associates: He seems to have had
no other associates than his family, con-
sisting of a wife and two little boys.
General Statement of Crime: The little
girl v?as taken by him from the Sisters'
Home, and adopted by him. The evidence
shows that he has been practicing gexual
intercourse with her since she became about
12 years old. The case was corroborated by
three other witnesses who testified to having
seen him in compromising position with the
child.
Suggestions as to Treatment; Being an
old man, I suggest that his treatment as
adopted should take that fact into consider-
ation.
(Signed) J. W. HAMILTON, Judge.
Oregon State Penitentiary.
Statement to the Governor of Prisoner
Seeking Parole.
May 12 1920.
To the Governor of Oregon,
Salem, Oregon.
Name: Jacob Cline Alias: Prison
No. 7939.
Age: 65. Crime: Rape.
Where was your home at the time? Near
Glendale.
Give other places of residence: Sauvies
Island.
What business, occupation or calling did you
follow? Farming.
Were you occupied or idle preceding the
commission of your crime? Occupied.
Have you a wife and children? Yes.
Have you parents living? Where are they?
How are they situated? No.
320
Case; and Family HistorieIs of Individuai^s
What education have you had? Fair.
Tell the story of your crime: Was gone
from home and another man raped my
adopted daughter and got her to lay the
blame on me. She did it for love and
money.
Are you guilty of the crime? No.
What did you plead at the trial? Innocence.
Are you justly imprisoned according to the
evidence? No.
Date of crime? 24 of May 1918.
What were your relations to the complaining
witness? Foster father.
What was her action in the case; fair or
otherwise? Unfair.
What is the present attitude of complainant
toward you? Good.
Have you the promise of work if paroled?
What are your prospects in this connec-
tion? Good, have a farm.
Have you ever previously been convicted ol
crime? How many times? No.
Have you ever previously served jail, or
prison sentence? No.
If so, when and where and for what crime?
Are you addicted to the use of liquor? No.
Give names and addresses of two nearest
relatives or friends. If relatives, give rela-
tionship: 3 sisters.
Mrs. Bell Cook, Svenson, Oregon.
Mrs. Sm. Tunstall, West Union, Oregon.
Give name of sentencing Judge: Hon.
Hamilton.
Give name of Sheriff: George K. Quine. 1
(Signed) JACOB CLINE.
Report by the Warden of the Oregon State
Penitentiary to the State Board of Eugenics.
To the State Board of Eugenics, Greeting:
I hereby report to you Jacob CHne, a ]
feeble-minded, insane, epileptic, habitual
criminal, moral degenerate or sexual pervert, '
towit: a Sexual Pervert — who is a person
potential to producing offspring who, be-
cause of inheritance of inferior or antisocial
traits, would probably become a social
menace, or a ward of the State.
Dated, this first day of January, 1921.
(Signed) L. H. COMPTON,
Warden, Oregon State Penitentiary.
I.
HhO
Oor\T\a.
m. □— 0 □ □ i,i i QO
Pedigree Chart of Warrien Wallace Smith
OrS
Vox.
D
DtO
"tni^Xottv^ \i«.V\tA«.Y\t
r?\^T\^.
6rnu D d (LM-t^:^^^
V.o<*.r\ii g§
/
i ^OD o^^-^^
44 4
CH.
e'<\aT\^^. \
^NAcwXViiw \jl.V(\^ QocVcwiY. ^o^co*-.
V-vy^^.
b 66 6
^^cnX
A — Alcoholic
E — Epileptic
F — Feebleminded
I — Insane
S— Syphilitic
Sex — Sexual Offender
T — Tuberculosis
Members of the Smith (paternal side of propositus) as well as the Kisker family (maternal side) can be described as below the average intellige
shiftless, most of them hard working laborers, barely earning their Uving. All of them had very little schooUng.
Pedigree Chart of Warrlen Wallace Smith
DrO
□ D n (E
6
D-O
DrO D-O
'OU
/
a«x.
NAowtw \_«.Vc\^ Oi!r\Vw,r. VvO'it.oe.
D GO" O
^M^.
S.V\\'»X\VW..
V_\»M<i..
^«.t\\. V.\i.tvk. \joro..
6 6
Sex
iftTS)n
n Chr0
o
aternal side of propositus) as well as the Kisker family (maternal side) can be described as below the average intelligence, unambitious,
shiftless, most of them hard working laborers, barely earning their living. All of them had very Uttle schooling.
CHAPTER IX.
LEGAL OPINION.
1. Opinion of the Honorable Harry Olson, Chief Justice, Municipal Court
of Chicagro 323
3. Official opinion of the Attorney-General of California on the asexuali-
zation law 334
3. Opinion of the Attorney-General of Connecticut on the asexualization act 338
4. Additional opinion of the Attorney-General of Connecticut 333
5. Opinion by Louis Marshall, Esquire 334
6. Brief by Charles A. Boston, Esquire 336
Summary 336
322
IrEGAi, Opinions
1. OPINION OF THE HONORABLE
HARRY OLSON, CHIEF JUSTICE,
MUNICIPAL COURT OF CHICAGO.
Chicago, 111., Nov. 1, 1933.
My dear Prof. Laughlin:
You have asked me for my opinion of the
constitutionality of the eugenics sterilization
law which you have proposed.
The constitutionality of such a law has
been so well and ably discussed by others,
who have rendered their opinions, and you
have quoted from so many decided cases,
that I feel there is nothing more that can
profitably be said on the subject.
I believe the model law, which you pro-
pose, will be held constitutional by the
courts. It meets objections which have
been made by the courts to legislation en-
acted by several states. Such legislation
has often violated the bill of rights, which
guarantees to all citizens an equal protec-
tion of the laws, "the due process of law"
clause, the provision against cruel and un-
usual punishment, the bill of attainder
clause, the ex post facto and the twice in
jeopardy provisions of the constitution.
The model act applies the law to the popu-
lation generally, outside of institutions, as
well as inmates thereof.
"The due process of law" clause in the
constitution is not infringed by the model
act, which provides for a hearing in court
with due notice, the right of a jury trial and
the right of appeal.
The model act has no element of punish-
ment in it, and thus the question of the
constitutional inhibition against cruel and
unusual punishment will not arise.
The elimination of the punitive element in
the model act also removes the possibility
of a question arising under a bill of attainder,
twice in jeopardy provisions, or the ex post
facto clause of the constitution.
The model act places the burden of proof
upon the state to establish that the person
designated for sterilization is a menace to
the next generation by reason of degenerate
hereditary qualities. Legal objections to
sterilization in certain cases are, so far as I
can see, eliminated from this model act. I
prefer, therefore, to discuss the need of such
legislation rather than its legality. The
efficacy of such a law will turn upon ques-
tions of fact, and its enforcement upon public
policy.
If the science of eugenics has so far ad-
vanced, as seems to be the fact, that it can
be determined that certain individuals are
afflicted with physical, nervous, and mental
disorders that are hereditary and will re-
appear in the next or later generations, and
threaten the safety of society, and that by
a simple, and practically painless operation,
such persons can be rendered sterile, then
there can be no question but that legislation
contemplated by the model act will be an
effective protection to future generations,
and will be in furtherance of a sound public
policy. Indeed, if society can prevent de-
generate stocks from multiplying, it is its
supreme duty to do so, and when such pre-
vention can be brought about in a humane
manner, there will be no hesitancy on the
part of an informed public in enacting and
enforcing legislation to that end.
The efiforts of all who appreciate the ne-
cessity of such biological legislation, as you
propose, must be directed toward spreading
information of the hereditary character of
serious nervous and mental disorders, and
of some physical defects. That such educa-
tion is badly needed is evident from the fact
that a speaker, in an address before no less
important a body than the American Bar
Association a few years ago, challenged the
idea that there was any possibility of in-
heriting anything from one's ancestors:
"Heredity," said he, "aside from living
parental example, has nothing to do with
the matter. * * * Usually, the criminal is
from an honest father and mother."
The right and the duty of self defense
applies no less to nations than to individu-
. als. The menace of the world war through
! the elimination of dominant stocks of all
nations engaged therein was a tremendous
set-back to the progress of these nations,
but, even so, it was not so serious a handi-
cap to their future welfare as is the fact that
defective and degenerate stocks were spared
j the destruction of war to people the future
I with their own kind.
Not only must nations defend their future
against racial degeneration from within, but
they must limit immigration of defective
stocks from all other lands. Because we
have received an abundance of valuable and
well-bred stock through immigration, our
government has been lax and careless in its
immigration legislation and administration,
while the authorities of other nations, better
informed, have made of us an asylum and
a dumping ground for their own vagabond,
drunken, degenerate, feebleminded, dementia
praecox, epileptic, and criminalistic classes.
That this is so has been demonstrated
again and again in the Psychopathic Labo-
ratory of the Municipal Court of Chicago,
where whole families drift soon after arrival
in America and Chicago. The government
immigration authorities have been on the
lookout for physical defects, eye defects,
etc., but have not understood intellectual and
emotional defects, especially the latter. The
feeblemindedness or low mentality of cer-
tain immigrants has been concealed from
the authorities by the mask of a foreign
tongue, and the emotional defect by the
smoke screen of actual or apparent in-
LfEGAi, Opinions
323
telligence. Our Laboratory has demon-
strated that where the emotions are absent,
there is no conscience, and such a defect
governs behavior far more than the intellect.
Hence the dementia praecox type of de-
ficiency when accompanied by a twelve year
old intelligence has had easy admission into
America without understanding or objection
from our authorities. Early defective immi-
gration has added to our native element of
this type. Our criminal courts are full of
dementia praecox cases. They commit most
of the fundamental crimes, such as robbery,
burglary, rape and murder. They constitute
sixty-five per cent of the inmates of insane
asylums; Their care entails a vast expense
to the state, in some states thirty-three per
cent of the total assessed taxes. Our asy-
lums and penitentiaries are increasing in pop-
ulation, and the expense of their care is
mounting. Laws for the punishment of
crime have no real deterrent effect upon
mental defectives, and there has been a. fail-
ure to check crime by law enforcement
against this type of offender. Our Psycho-
pathic Laboratory records show that, out of
779 cases in the Boys Court, there were 654
suffering from dementia praecox, or about
84 per cent; 109 psychopathic constitution,
or about 13 per cent, and 10 epilepsies, or
less than 1 per cent. In the Morals Court,
out of 464 cases of females, 260 or 36 per
cent, were dementia praecox; 92 psycho-
pathic constitution, or 19 per cent, and 4
epilepsies, or less than 1 per cent.
Out of 359 cases of males in the Morals
Court, 107 were dementia praecox, 110
psychopathic constitution, and 4 epilepsies.
Out of 657 cases of males in the Domestic
Relations Court, 236 were dementia praecox,
295 psychopathic constitution, and 3 epilep-
sies. In the outside criminal branches, of
270 males, 107 were dementia praecox, 68
psychopathic constitution, and 5 epilepsies.
Out of 153 females,- 84 were dementia prae-
cox, 41 psychopathic constitution, and 1 epi-
lepsy. Observe, therefore, that dementia
praecox plays the highest role and is the
criminal psychosis par excellence.
. Life has become unsafe by reason of the
presence of this type in society, despite in-
I dustrial precaution and efforts of police and
courts. Their early and rapid multiplication
'i increases the threat to civilization. All this
is known to intelligent editors, physicians,
lawyers, judges, and social workers. When
these facts become common knowledge pro-
tective legislation will be enacted. In Chi-
cago we have sought to educate the public,
by publishing accurate and scientific diag-
noses of this type, made by a highly trained
and competent expert, when they have been
■brought into court and convicted of serious
crimes. The Chicago public now refer to
dementia praecox for an explanation of
brutal and gross criminal conduct, indicat-
ing absence of the normal emotions of the
average person. Our press advocated and
our legislature passed legislation for the
segregation of mental defectives guilty of
their second crime. The legislation was
vetoed by the governor on the principal
ground that no farm colony had been pro-
vided by the legislature. Such legislation, I .
am confident, will be passed by the next
Illinois legislature.
Progress is being made in other states
also. Psychopathic laboratories connected
with the criminal courts of our large cities
are rapidly disclosing to the public that hered-
itary mental defects lie at the bottom of
most fundamental crimes. Industrial acci-
dents due to mental deficiency are common
enough to place the manufacturing, rail-
roading, and building industries on their
guard. The increasing cost of maintenance '
of the insane and mental defectives has at-
tracted the notice of the taxpayer. The
physician is being drafted into public office
and his special knowledge of the havoc
worked in our civilization by hereditary de-
fectives will be reflected in the legislation I
and administration to curb the menace of |
inferior stock.
Books like "The Racial Prospect" by S.
K. Humphrey, "The Revolt Against Civili-
zation" by Lothrop Stoddard, and "Is Amer-
ica Safe for Democracy" by William Mc-
Dougal, have had a wide public influence.
The publication of this volume, written
by you as the result of long investigation
along scientific lines, and especially Chapter
XI, entitled "Eugenical Diagnosis," wherein
the workings of Mendel's law of heredity are
demonstrated, will prove to be sensational,
not only in our own country, but in all other
civilized lands.
"The Rising Tide of Color," by Lothrop
Stoddard, warns us of danger to the white
race, but this book of yours warns humanity
of the menace to all races — to the entire
human race — of racial degeneracy. Nor_ do
you stop with this warning, but in addition,
you point out the direct and effective rem-
edy. You have rendered humanity a great
service by your painstaking labors for which
future generations will ch-erish your name.
Sincerely yours,
HARRY OLSON,
Chief Justice.
324
Legai. Opinions
2. OFFICIAL OPINION OF THE
ATTORNEY-GENERAL OF CALI-
FORNIA ON THE ASEXUALIZA-
TION LAW.
State of California,
Office of the Attorney-General. •
* San Francisco, March 2, 1910.
Hon. F. W. Hatch, General Superintendent
of State Hospitals, Sacramento, California.
Your favor of October 25, 1909, in relation
• to the asexualization of a certain class of
insane and convicts, duly received. The
statute to which you refer is as follows:
"Whenever in the opinion of the medical
superintendent of any State Hospital, or the
superintendent of the California Home for
the Care and Training of Feeble-minded
Children, or of the resident physician in any
state prison, it would be beneficial and con-
ducive to the benefit of the physical, mental,
or moral condition of any inmate of said
state hospital, home or state prison, to be
asexualized, then such superintendent or resi-
dent physician shall call in consultation the
general superintendent of state hospitals and
the secretary of the State Board of Health,
and they shall jointly examine into all the
particulars of the case with the said superin-
tendent or resident physician, and if in their
opinion, or in the opinon of any two of them
asexualization will be beneficial to such in-
mate, patient or convict, they may perform
the same; provided, that in the case of an
inmate or convict confined in any of the state
prisons of this state, such operation shall
not be performed unless the said inmate or
convict has been committed to a state prison
in this or some other state or country at least
two times for some sexual offense, or at least
three times for any other crime, and shall
have given evidence while an inmate in a
state prison in this state that he is a moral
or sexual pervert; and provided, further, that
in the case of convicts sentenced to state
prison for life who exhibit continued evidence
of moral and sexual depravity, the right to
asexualize them, as provided in this act, shall
apply, whether they have been inmates of a
state prison either in this or any other state
or country more than one time." (Statutes
1909, p. 1093.)
I may as well state at the outset that in
my opinion the question of the castration of
rapists and confirmed criminals presents
some grave constitutional aspects, and I fear
that in a statute of the nature of the one
before us, the constitutional guarantees are
not entirely preserved.
There are no recorded cases arising under
a statute similar to this one, as Indiana and
California are the pioneer states in this legis-
lation. A consideration of the Indiana
statute, however, came before the annual
meeting of the National Prison Association
held in Chicago in September, 1907, and very
full argument was indulged therein. The
Attorney-General of Indiana, Mr. Bingham,
doubted the soundness of the principle of
emasculating a perfectly sane person, unless
it is imposed as a part of a penalty; in other
words, that this operation should be a matter
of punishment adjudged by the court. This
view seemed to be concurred in by other
attorneys there present. It was suggested
that such a punishment would be unsafe in
the hands of the court and the modern jury,
and should only be applied after the investi-
gation of experts. There is no doubt of the
soundness of this idea, but we are restricted
in this country by our system of government
which excludes many of the acts of paternal-
ism not having the sanction of law. What
I have said, however, applies to the opera-
tion known as castration. But there is
another operation, for the prevention of pro-
creation, upon the inmates of institutions
intrusted with the care of confined criminals,
idiots, rapists and imbeciles, and to the
extent that the operation is part of a neces-
sary medical treatment, the act would be
undoubtedly valid. This is also the opinion
of the attorneys who were present at the
meeting of the National Prison Association
where this question was discussed. (See
transactions National Prison Association,
1907, pp. 177-194.)
In treating upon this subject, it must be
borne in mind that rnedical opinion is now
convinced that degeneracy is a defect, and
that a defect differs from a disease, in that it
can not be cured. Degeneracy is the term
applied when the nervous or mental construc-
tion of the individual is in a state of unstable
equilibrium. Degeneracy means that certainv
areas of brain cells or nerve centers of the
individual are more highly or imperfectly!
developed than the other brain cells, and
this causes an unstable state of the nerve
system, which may manifest itself in insanity,
criminality, idiocy, sexual perversion, or
inebriety. Most of the insane, epileptic,
imbecile, idiotic, sexual perverts; many of
the confirmed inebriates, prostitutes, tramps,
and criminals, as well as the habitual paupers,
Legal Opinions
325
found in our country poor-asylums; also
many of the children in our orphan homes,
belong to the class known as degenerates.
For this condition to go on unchecked even-
tually means a weakening of our nation. It
is as Herbert Spencer once said, "To be a
good animal is the first requisite to success
in life, and to be a nation of good animals is
the first condition to national prosperity."
Marriage Restrictions Not Sufficient.
Idiots, imbeciles, and degenerate criminals
; are prolific, and their defects are trans-
' missible. Each person is a unit of the nation,
and the nation is strong and pure and sane,
or weak 'and corrupt and insane, in the pro-
portion that the mentally and physically
healthy exceed the diseased. This grave
danger has consumed the thought of great
and good men in recent years. Much re-
strictive legislation has been suggested, and
many states have passed marriage laws for
the purpose of regulating, as far as possible,
the propagation of degenerates through the
marriage relation. Minnesota has a law pro-
viding that no woman under the age of forty-
five years, or a man of any age, except he
marry a woman over forty-five years of age,
either of whom is epileptic, imbecile, feeble-
minded, or afflicted with insanity, shall inter-
marry or marry any other person within the
bounds of the state. Michigan, Delaware,
Connecticut, New Jersey, and North Dakota
have all passed laws for the purpose of pre-
venting marriage among defectives; but, un-
fortunately, matrimony is not always neces-
sary to propagation, and the tendency of
these several different laws is to restrict pro-
creation only among the more moral and
intelligent class, while the most undesirable
class goes on reproducing its kind, the only
difference being that illegitimacy is added to
degeneracy.
Castration is another means that has been
suggested for the purpose of preventing the
propagation of the unfit. But there is still
too much conflict among experts as to the
result of this drastic measure, and observa-
tion of its data has not been sufficiently
thorough to warrant any definite deductions.
Castration sometimes causes death, and it
can readily be seen that one subjected to it
would in all probability become morose and
downcast on account of the deformity. Be-
sides the organs involved have a double
function, that of an internal as well as an
external secretion, and the organism can not
maintain a normal condition when robbed of
this internal . secretion.
The same results, however, in the preven-
tion of degeneracy can be obtained by a
method of treatment less objectionable and
less severe. This operation is known as
vasectomy, which consists of ligating and
resectin^i small portion of the vas deferens.
Of this operation. Dr. H. C. Sharp, physician
in the Indiana Reformatory, who was one of
the first to apply it, as early as the year 1899,
says:
"This operation is, indeed, very simple and
easy to perform. I do it without administer-
ing an anesthetic, either general or local. It
requires about three minutes' time to per-
form the operation, and the subject returns
to his work immediately, suffers no incon-
venience, and is in no way impaired for his
pursuit of life, liberty, and happiness, but is
effectively sterilized. I have been doing this
operation for nine full years. I have two
hundred and thirty-six cases that have
afforded splendid opportunity for post-oper-
ative observation, and I have never seen any
unfavorable symptoms. There is no atrophy
of the testicles, there is no cystic degenera-
tion, there is no disturbed mental or nervous
condition following, but, on the contrary, the
patient becomes of a more sunny disposition,
brighter of intellect, ceases excessive mastur-
bation, and advises his fellows to submit tc
the operation for their own good. And here
is where this method of preventing procrea-
tion is so infinitely superior to all others
proposed — that it is endorsed* by the sub-
jected persons. All the other methods pro-
posed place restrictions, and, therefore, pun-
ishment upon the subject; this method abso-
lutely does not. There is no expense to the
state, no sorrow or shame to the friends of
the individual as there is bound to be in the
carrying out of the segregation idea."
Additional Protection to Marriage.
There is a law providing for the steriliza-
tion of defectives in effect in Indiana, and
our law follows it very closely. Under the
provisions of the law women may be sub-
jected to sterilization as well as men, and
the operation on women is almost as simple,
for it consists of simply ligating the fallopian
tube.
If, under the Constitution, the state may so
far interfere with the right to contract as to
prohibit the marriage of epileptics, it would
jDeem that, considering this measure solely
as a preventive and health measure, it would
to no greater extent violate the Federal
Constitution or the Civil Rights Bill. It may
326
Legal Opinions
also be considered as an additional protection
to the marriage relation, for intercourse
under the sanction of the marriage relation
is the only intercourse between the sexes
recognized by the law, and, if the state may
absolutely prohibit such intercourse between
epileptics in the marriage relation, it would
seem that it would have the power for the
protection of society to take these absolutely
preventive measures, especially as their
effects upon the subject are innocuous.
Marriage is undoubtedly the supreme
product of human social evolution. Every
advance made in the ethics of marriage has
been at the expense of a battle with natural
law and animal impulse. The integrity and
moral plane of the family are the keynote of
our social fabric, but the struggle to main-
tain monogamy has been a fierce one, and is
still going on beneath the surface.
It is on these broad grounds that the
courts have upheld statutes preventing the
marriage of defectives. I call your attention
particularly to the case of Gould vs. Gould,
78 Conn. 342 (61 Atl. 604), wherein the
court says:
Was the statute a valid act of legislation?
It forbade the marriage of certain classes of
persons under any circumstances. One of
these, only, it is now necessary to consider —
that of epileptic. The provisions of the act
of 1895 were separable with respect to the
different classes' of persons with whom it
deals, and, so far as this action is concerned,
it is enough if it can be supported as to
marriages contracted after its enactment by
those in the condition of the defendant: Pub.
Acts. 1895, Chap. 325, p. 667. The constitu-
tion of this state (preamble and article 1,
section 1) guarantees to its people equality
under the law in the rights to "life, liberty
and the pursuit of happiness": State vs.
Conlon, 65 Conn. 478, 489, 491, 3t L. R. A.
55, 48 Am. St. Rep. 227, 33 Atl. 519. One of
these is the right to contract marriage; but
it is a right that can only be exercised under
such reasonable conditions as the legislature
may see fit to impose. It is not possessed
by those below a certain age. It is denied
to those who stand within certain degrees
of kinship. The mode of celebrating it is
prescribed in strict and exclusive terms:
Gen. Stat. 1903, Sec. 4538. The universal pro-
hibition in all civilized countries of marriages
between near kindred proceeds in part from
the established fact that the issue of such
marriages are often, though by no means
always, of an inferior type of physical or
mental development. That epilepsy is a
disease of a peculiarly serious and revoking
character, tending to weaken mental force,
and often descending from parent to child,
or entailing upon the offspring of the suf-
ferer some other grave form of nervous
malady, is a matter of common knowledge,
of which courts will take judicial notice.
State vs. Main, 69 Conn. 133, 135, 36 L. R.
A. 623, 61 Am. St. Rep. 30, 37 Atl. 80. One
mode of guarding against the perpetuation
of epilepsy obviously is to forbid sexual in-
tercourse with those afflicted by it, and to
preclude such opportunities for sexual inter-
course as marriage furnishes. To impose
such a restriction upon the right to contract
marriage, if not intrinsically unreasonable,
is no invasion of the equality of all men be-
fore the law, if it applies equally to all, under
the same circumstances, who belong to a
certain class of persons, which class can
reasonably be regarded as one requiring spe-
cial legislation either for their protection or
for the protection from them of the com-
munity at large. It can not be pronounced
by the judiciary to be intrinsically unreason-
able if it should be regarded as a determina-
tion by the general assembly that a law of
this kind is necessary for the preservation
of public health, and if there are substantial
grounds for believing that such determina-
tion is supported by the facts upon which it
is apparent that it was based: Holden vs.
Hardy, 169 U. S. 366, 398, 42 L. ed. 780, 18
Sup. Ct. Rep. 383; Bissell vs. Davison, 65
Conn. 183, 192, 29 L. R. A. 251, 32 Atl. 348.
There can "be no doubt as to the opinion of
the general assembly, nor as to its resting
on substantial foundations. The class of
persons to whom the statute applies is not
one arbitrarily formed to suit its purpose.
It is certain and definite. It is a class cap-
able of endangering the health of families
and adding greatly to the sum of human
suffering. Between the members of this
class there is no discrimination, and the pro-
hibitions of the statute cease to operate
when, by the attainment of a certain age by
one of those whom it affects, the occasion
for the restriction is deemed to become less
imperative. While Connecticut was the pio-
neer in ths country with respect to legisla-
tion of this character, it no longer stands
alone. Michigan, Minnesota, Kansas and
Ohio have, since 1895, acted in the same di-
rection: 2 Howard, Matrimonial Institu-
tions, 400, 479, 480; Ohio Sess. Laws 1904,
p. 83. Laws of this kind may be regarded
Legal Opinions
327
as an exprcsion of the conviction of modern
society tiiat disease is largely preventable by
proper precautions, and that it is not unjust
in certain cases to require the observation
of these, even at the cost of narrowing what
in former days was regarded as the proper
domain of individual right. It follows that
the statute in question was not invalid, as
respects marriages contracted by epileptics,
after it took effect.
If there is the power to thus guard against
the perpetuation of epilepsy and preclude
such opportunities for sexual intercourse as
marriage furnishes, then, by the same course
of reasoning, the state would have the power
to preclude any opportunity for such inter-
course in the manner herein prescribed, in
asmuch as the measures provided for have
no harmful results.
Considered, then, as a health measure,
and as a rational and undoubted protection
to society, without any elements of torture
accompanying its execution, it appears to me
that the sterilization of degenerates by the
method which I have described would not
violate our constitutional guarantee.
Common Law Must Keep Pace with Scien-
tific and Social Advances.
We are living in a quick and active ago
of scientific progress and achievement that
atrophies the power of surprise. The in-
dividual finds himself in the midst of a be-
wildering panorama of uses and activities,
and he needs a superb equipment to meet
them. The age must furnish him with the
equipment, mental and physical, as well as
with the activities. The art of healing and
preventive _ medicine, in particular, has
achieved great triumphs in emancipating the
race from the old terrors of virulent dis-
ease. This it has done by dealing with the
science of causes, instead of results alone.
I It has now turned its penetrating light upon
race degeneracy, with its train of accom-
panying evils, criminality, prostitution, pau
[ perism, inebriety, and insanity. Modern
thought is being swayed by these immortal
pioneers of science who have stood for the
liberation of humanity from ignorance, dog-
ma, and superstition. The dealing with
crime from the standpoint of its causes,
heredity and degeneracy, congenital and ac-
' quired, is a modern science. Lombroso's
great work appeared in 1876. Already ai^
enlightened criminology has had its results
in our modern reformatories; the .growing
sentiment in favor of classification of crimi-
nals; the establishment of juvenile courts,
and the sei)aration of youthful and adult
criminals; the parole system, and the in-
creasing favor with which the indeterminate
sentence is regarded. These are but rays
of light which filter down into our slough of
ignorance. We can not but be profoundly
convinced that the day of fruition in the
treatment of the criminal and insane is at
hand. Science has taken its masterful grasp
of this subject, and the precious results will
as surely follow as the discovery of anaesthe-
sia, or any of the boons which have attended
the triumphant march of scientific thought,
and the measures here proposed will un-
doubtedly become universal in the treatment
of defectives. Shall it be said that the su-
preme flower of Anglo-Saxon civilization,
the common law, does not keep pace with
the beneficent ideas of the age? Is it not
adequate to the ever-varying needs of our
social development? Mr. Justice Matthews
says, in Hurtado vs. California, that this
flexibilty and capacity for growth and adap-
tation is the peculiar boast and excellence of
the common law. The Constitution of the
United States was ordained, it is true, by
the descendants of England, who inherited
the traditions of English law and history;
but it was made for an undefined and ex-
panding future and for a people gathered,
and to be gathered, from many nations and
many tongues There is nothing in Magna
Charta, rightly construed, as a broad char-
ter of right and law, which ought to exclude
the best ideas of all systems and of every
age; and as it was the characteristic principle
of the common law to draw its inspiration
from every foundation of justice, we are not
to assume that its sources of supply have
been exhausted On the contrary, we should
expect that the new and various experiences
of our own situation and system will mould
and shape it into. new and not less useful
forms. (Hurtado vs. California, 110 U. S.
5,30.)
Vasectomy Leaves Liberty and Life.
Whether considered as an additional pun-
ishment, or as an invasion of the right to
procreate, involved in the right to life, liberty
and happiness, the measures proposed are
no more radical than the measures for the
suppression of crime now in vogue, which
do not show any particular sensitiveness on
the part of society as to the criminal's rights.
The law does not hesitate to hang the mur-
derer, despite the fact that, upon the aver-
age, the murderer is of all criminals the
least dangerous to society. Liberty is the
328
LegaIv Opinions
right of man, which can not be gainsaid, yet
the law does not hesitate to imprison for life
on occasion. Life imprisonment not only
takes away liberty, but practically infringes
upon the right to live, the right to marry,
and the right to procreate. In imprisonment
for life, or capital punishment, it would be
somewhat difficult to see any conservation
of the rights of the criminal's posterity from
the sentimentalist's standpoint.
Sterilization of criminals for the protection
of the public against a degenerate posterity
in no way compares in severity with capital
punishment or imprisonment for life, for it
does not interfere with either liberty or life.
As to the difficulty of determining whether
a person is a congenital criminal or not be-
fore applying the measures proposed, a noted
specialist has this to say:
It is not necessary to demonstrate a crim-
inal anthropological type in order to prove
the value of measures tending to prevent the
procreation of children hy criminals.
Whether there is a definite anthropologic
type, or not, the fact remains that a certain
more or less definite proportion of our popu-
lation is composed of criminals by instinct
and by profession — these individuals are de-
generates, and the degeneracy that is re-
sponsible for their own criminality may in-
dubitably be transmitted to their descend-
ants. Any measure that prevents this class
of individuals from having descendants is
necessarily preventive of crime. To demand
that all criminals should be cast in a definite
mould, the finished product of which he who
runs may read, is begging the question. It
is not necessary to determine whether "any
given convict is a member of an hereditary
criminal group" in order to show that the
prevention of his procreating will be pre-
ventive of crime.
It is oTjvious that the application of sterili-
zation to the crime class would require some
discrimination, and should be made under
strictly scientific' supervision.
So far as the typic or habitual criminal is
concerned, the method should be universally
applied. In other cases, careful study and
selection should be made, society in all
cases being given the benefit of the doubt.
There is this to be said in favor of steriliza-
tion, viz., if performed under strict scientific
supervision, as a method of preventing crime
only, and not for the purpose of punish-
ment— it being directed against the criminal
and not against the crime that he has com-
mitted— comparatively few mistakes would
be likely to be made, and those mistakes by
no means so serious in results as many that
are made by courts of law in the correction
and punishment of the innocent.
As restricted to the sterilization of the in-
mates of prisons and hospitals by the method
of vasectomy, I am of opinion that there are
no legal inhibitions upon this enlightened
piece of legislation which is an awakening
note to a new era and a great advance to-
ward that day when man's inhumanity to
man will have acquired a meaning beyond
mere frothy sentiment.
Castration Presents a Constitutional
Question.
As regards the castration of confirmed
criminals and rapists, and those guilty of
sexual crimes, I am of the opinion that there
are grave constitutional questions at stake,
and that such measures should not be taken
until an adjudication is had in a court of
law.
Yours very truly,
(Signed) U. S. WEBB, Attorney General.
By R. C. Van Fleet, Deputy.
3. THE OPINION OF THE ATTOR-
NEY-GENERAL OF CONNECTI-
CUT, ON THE ASEXUALIZATION
ACT.
The Act Authorizing Operations for the
Prevention of Procreation Is Consti-
tional.
Hartford, December 9, 1912.
Ward A. Garner, Esq.,
Warden of Connecticut State Prison.
Dear Sir — You request my opinion on be-
half of the Board of Directors of the Con-
necticut State Prison as to the dbnstitution-
ality of Chapter 209 of the Public Acts of
1909, being an act entitled "An Act Concern-
ing Operations for the Prevention of Pro-
creation."
The act in question reads as follows:
"Section 1. The directors of the state
prison, and the superintendents of the state
hospitals for the insane at Middletown and
Norwich are hereby authorized and directed
to appoint for each of said institutions re-
spectively two skilled surgeons, who, in con-
junction with the physician or surgeon ni
charge at each of said institutions, shall con-
stitute a board the duty of which shall be to
examine such inmates of said institutions as
are reported to them by the warden, super-
intendent, or the physician or surgeon m
charge, to be persons by whom procreation
would be inadvisable. Such board shall ex-
IvEGAi, Opinions
329
amine the physical and mental condition of
such persons and their record and family
history so far as the same can be ascertained,
and if, in the judgment of a majority of said
board, procreation by any such person would
produce children with an inherited tendency
to crime, insanity, feeble-mindedness, idiocy,
or imbecility, and there is no probabilty that
the condition of any such person so ex-
amined will improve to such an extent as to
render procreation by any such person ad-
visable, or if the physical or mental condi-
tion of any such person will be substantially
improved thereby, then said board shall ap-
point one of its members to perform the
operation of vasectomy or oophorectomy, as
the case may be, upon such person. Such
operation shall be performed in a safe and
humane manner, and the board making such
examination and the surgeon performing
such operation shall receive from the state
such compensation for services rendered as
the warden of the state prison, or the super-
intendent of either of such hospitals shall
deem reasonable
Sec. 2. Except as authorized by this act,
every person who shall perform, encourage,
assist in, or otherwise promote the perform-
ance of either of the operations described in
section one of this act, for the purpose of
destroying the power to procreate the human
species, or any person who shall knowingly
permit either of such operations to be per-
formed upon such person, unless the same
shall be a medical necessity, shall be fined
not more than one thousand dollars, or im-
prisoned in the state prison not more than
five years, or both."
This statute is clearly a police regulation,
therefore its constitutionality must depend
upon whether the regulations prescribed are
kept within the proper bounds of the police
powers of the State.
Woodruff V. N. Y. & N. Eng. R. R. Co.,
59 Conn., 85.
It has been universally conceded that
under the broad and comprehensive rule of
public policy, States may do anything neces-
sary to protect the people, which is not in
conflict with the constitution.
It has been repeatedly held that the State
may regulate, and even prohibit, marriage
under certain conditions, and the legislature
may authorize municipal corporations, or
boards of education, to exclude unvaccinated
children from public schools, even in the ab-
sence of smallpox.
Gould V. Gould, 78 Conn., 242.
Bissell V. Davidson, 65 Conn., 183.
Our constitution does not impose any
specific limitations on the exercise of legis-
lative power, except some slight restrictions
in one or two amendments, but our Bill of
Rights constitutes the fundamental condi-
tion on which all powers of government may
be exercised. It guarantees to the people
equality under the law in their rights to "life,
liberty, and the pursuit of happiness."
Preamble and Article First.
State v. Conlen, 65 Conn., 48.
Among these rights may be mentioned the
right to contract marriage, and the right to
beget children, but these rights can only be
exercised under such reasonable conditions
as the legislature may see fit to impose.
The right to contract marriage is not pos-
sessed by those below a certain age, and it
is frequently denied to those who stand
within certain degrees of kinship. The law
has fixed the mode of celebrating it in strict
and exclusive terms.
A few years ago our legislature passed a
law forbidding man or woman, either of
whom is epileptic, imbecile or feeble-minded,
to intermarry, or live together as husband
and wife, when the woman is under forty-
five years of age, and made it a state prison
oflfense to violate, or to attempt to violate,
any provision of the act. Our Supreme
Court held this statute to be constitutional.
In speaking for the Court in Gould v.
Gould, 78 Conn., 244, Mr. Justice Baldwin
said:
"The universal prohibition in all civilized
countries of martiages between near kindred
proceeds in part from the established fact
that the issue of such marriages are often,
though by no means always, of an inferior
type of physical or mental development.
"That epilepsy is a disease of a peculiarly
serious and revolting character, tending to
weaken mental force, and often descending
from parent to child, or entailing upon the
pffspring of the sufferer some other grave
form of nervous malady, is a matter of com-
mon knowledge, of which courts will take
judicial notice. State vs. Main, 69 Conn., 123,
135. One mode of guarding against the per-
petuation of epilepsy obviously is to forbid
sexual intercourse with those afflicted by
it, and to preclude such opportunities for
sexual intercourse as marriage furnishes.
To impose such a restriction upon the right
to contract marriage, if not intrinsically un-
330
LtGAh Opinions
reasonable, is no invasion of the equality of
all men before the law, if it applies equally
to all under the same circumstances who be-
long to a certain class of persons, which
class can reasonably be regarded as one re-
quiring special legislation either for their
protection or for the protection from them
of the community at large. It cannot be
pronounced by the judiciary to be intrinsic-
ally unreasonable, if it should be regarded as
a determination by the General Assembly
that a law of this kind is necessary for the
preservation of public health, and if there
are substantial grounds for believing that
such determination is supported by the facts
upon which it is apparent that it was based.
Holden v. Hardy, 169 U. S., 366, 398; Bissell
V. Davidson, 65 Conn. 183, 192. There can
be no doubt as to the opinion of the Gen-
eral Assembly, nor as to its resting on sub-
stantial foundations. The class of persons
to whom the statute applies is not one arbi-
trarily formed to suit its purpose. It is cer-
tain and, definite. It is a class capable of en-
dangering the health of families and adding
greatly to the sum of human suffering. Be-
tween the members of this class there is no
discrimination, and the prohibitions of the
statute cease to operate when, by the attain-
ment of a certain age by one of those whom
it affects, the occasion for the restriction is
deemed to become less imperative.
"While Connecticut was the pioneer in this
country with respect to legislation of this
character, it no longer stands alone. Michi-
gan, Minnesota, Kansas and Ohio, have,
since 1895, acted in the same direction. 2
Howard on Matrimonial Institutions, 400,
479, 480; Laws of Ohio, 1904, p. 83. Laws
of this kind may be regarded as an expres-
sion of the conviction of modern society that
disease is largely preventible by proper pre-
cautions, and that it is not unjust in certain
cases to require the observation of these,
even at the cost of narrowing what in for-
mer days was regarded as the proper domain
of individual right."
The principles laid down by Mr. Justice
Baldwin in said case apply with equal force
to the statute under consideration.
Society owes to itself the duty of previiit-
ing procreation by persons who would pro-
duce children with an inherited tendency to
crime, insanity, feeble-mindedness, idiocy, or
imbecility.
Dugdale's history of the Jukes shows
where the single ancestor "Max" was the
progenitor of more than 1,200 social dere-
licts.
in view of such history the sterilization
of criminals must stand within the police
power of the State upon the same footing
with the sterilization of idiots, feeble-minded
and imbeciles.
Such an operation should not be con-
sidered punishment any more than the im-
position of vaccination is a punishment. In
one case, society seeks to prevent the spread
of an infectious disease, and in the other,
the disastrous spread of crime, insanity,
feeble-mindedness, idiocy and imbecility.
In his work entitled "Mental Defectives,''
Dr. Barr says:
"Let asexualization be once legalized, not
as a penalty for crime, but a remedial meas-
ure preventing crime and tending to future
comfort and happiness of the defective; let
the practice once become common for young
children imme'diately upon being adjudged
defective by competent authority properly
appointed, and the public mind will accept it
as an effective means of race preservation.
It would come to be regarded, just as
quarantine, simply as protection against ill."
Dr. H. C. Sharp of the Indiana Reforma-
tory, in liis pamphlet on "The Sterilization
of Degenerates," says:
"Since October, 1899. I have been per-
forming an operation known as vasectomy,
which consists of ligating and resecting a
small portion of the vas deferens. This
operation is indeed very simple and easy to
perform, I do it without administering an
anesthetic either general or local. It re-
quires about three minutes' time to perform
the operation and the subject returns to his
work immediately, suffers no inconvenience,
and is in no way impaired for his pursuit of
life, liberty and happiness, but is effectively
sterilized. I have been doing this operation
for nine full years. I have had two hundred
and thirty-six cases that have afforded splen-
did opportunity for post operative observa-
tion and I have never seen any unfavorable
symptom. . . . And here is where this
method of preventing procreation is so in-
finitely superior to all others proposed — that
it is' endorsed by the subjected persons. All
the other methods proposed place restrictions
and, therefore, punishment upon the subject;
this method absolutely does not."
It has been conclusively proven by the ex-
perience of the medical world that the opera-
tion of vasectomy and oophorectomy is com-
paratively painless, and therefore cannot be
Legai, Opinions
331
esteemed cruel, though it may be unusual,
but everything new is unusual.
The constitution does not contemplate
that the State should be restricted in the
exercise of protective measures to the forms
of evil that existed at the time the constitu-
tion was adopted.
In the case of Weems v. United States, 317
U. S., page 373, Mr. Justice McKenna, in
delivering the opinion of the Court, said:
"Legislation, both statutory and constitu-
tional, is enacted, it is true, from an experi-
ence of evils, but its general language should
not, therefore, be necessarily confined to the
form that evil had theretofore taken. Time
works changes, brings into existence new
conditions and purposes. Therefore a prin-
ciple, to be vital, must be capable of wider
application than the mischief which gave it
birth. This is peculiarly true of constitu-
tions. They are not ephemeral enactments,
designed to meet passing occasions. They
are, to use the words of Chief Justice Mar-
shall, 'designed to approach immortality as
nearly as human institutions can approach
it.' The future is their care, and provision
for events of good and bad tendencies of
which no prophecy can be made. In the
application of a constitution, therefore, our
contemplation cannot be only of what has
been, but of what may be. Under any other
rule a constitution would indeed be as easy
of application as it would be deficient in
efficacy and power. Its general principles
would have little value, and be converted by
precedent into impotent and lifeless formu-
las. Rights declared in words might be lost
in reality. And this has been recognized.
The meaning and vitality of the constitution
have developed against narrow and restric-
tive construction."
Modern scientific investigation has shown
clearly that idiocy, insanity, imbecility, and
criminality are hereditary, and congenital,
and, on the strength of this information, In-
diana, California, Connecticut, New Jersey,
Iowa, New York, Nevada, and Washington,
in the exercise of the police power, have en-
acted laws providing for the sterilization of
certain persons likely to produce children
with an inherited tendency to crime, insan-
ity, feeble-mindedness, idiocy or imbecility.
The State of Washington had a statute
which read as follows:
"Whenever any person shall be adjudged
guilty of carnal abuse of a female person
under the age of ten years, or of rape, or
shall be adjudged to be an habitual criminal.
the court may, in addition to such other
punishment, or confinement as may be im-
posed, direct an operation to be performed
upon such person, for the prevention of pro-
creation."
One Peter Feilen was convicted before the
Superior Court, King County, in the State
of Washington, of the crime of statutory
rape, committed upon the person of a female
child under the age of ten years, and was
sentenced to imprisonment for life, in the
state penitentiary, and in addition to such
punishment, acting under the authority given
in said statute, the court further ordered an
operation to be performed upon said Peter
Feilen for the prevention of procreation, and
the warden of the penitentiary of the State
of Washington was directed to have the or-
der carried into effect by some qualified and
capable surgeon by the operation known as
vasectomy.
The defendant appealed from the judgment
to the Supreme Court of the State, and con-
tended that the law is unconstitutional, in
that an operation for the prevention of pro-
creation is a cruel punishment, prohibited
by Article 1, Section 14, of the State Consti-
tution, which directs that "excessive bail
shall not be required, excessive fines im-
posed, nor cruel punishment inflicted." The
court (State v. Feilen) rendered its decision
September 3, 1912, holding the law to be
constitutional, and that the operation of
vasectomy is not cruel punishment. Among
other things, the court said:
"As the statute does not prescribe any
particular operation for the prevention of
procreation, the trial judge ordered that the
operation known as vasectomy be carefully
and skillfully performed. The question, then
presented for our considertation is whether
the operation of vasectomy, carefully and
skillfully performed, must be judicially de-
clared a cruel punishment forbidden by the
Constitution. No showing has been made
to the effect that it will in fact subject ap-
pellant to any marked degree of physical
torture, sufifering or pain. That question
was doubtless considered and passed upon
by the legislature when it enacted the
statute. . . .
"The crime of which the appellant has been
convicted is brutal, heinous, and revolting,
and one for which, if the legislature so de-
termined, the death penalty might be in-
flicted without infringement of any consti-
tutional inhibition. It is a crime for which
in some jurisdictions the death penalty has
332
Legal Opinions
been imposed. 33 Cyc, 1518. If for such a
crime death would not be held a cruel
punishment, then certainly any penalty less
than death, devoid of physical torture, might
also be inflicted. In the matter of penalties
for criminal offenses, the rule is that the dis-
cretion of the legislature will not be dis-
turbed by the courts, except in extreme
cases. It would be an interference with mat-
ters left by the Constitution to the legisla-
tive department of the government for us to
undertake to weigh the propriety of this or
that penalty fixed by the legislature for spec-
ific offenses. So long as they do not pro-
vide cruel and unusual punishments, such
as disgraced the civilization of former ages,
and make one shudder with horror to read
of them, as drawing, quartering, burning,
etc., the constitution does not put any limit
upon legislative discretion. Whitten v.
State, 47 Ga., 397. . . .
"In State v. Woodard, 68 V. 66, 69 S. E.
385, 30 L. R. A. (N. S.), 1004, a recent and
well considered case which may be consulted
with much profit, Brannon, Justice, said:
' . . . The legislature is clothed with
power well nigh unlimited to define crimes
and fix their punishment. So its enactments
do not deprive of life, liberty, or property
without due process of law, and the judg-
ment of a man's peers, its will is absolute.
It can take life, it can take liberty, it can
take property for crime. The legislatures of
the different states have the inherent power
to prohibit and punish any act as a crime,
provided thiey do not violate the restrictions
of the state and federal constitutions; and
the courts cannot look further into the pro-
priety of a penal statute than to ascertain
whether the legislature had the power to
enact it.' 12 Cyc, 136. 'The power of the
legislature to impose fines and penalties for
a violation of its statutory requirements is
coeval with government. Mo. P. R. Co. v.
Humes, lis U. S., 613 (6 Sup. Ct. lio, 29
L. Ed., 463). The legislature is ordinarily
the judge of the expediency of creating new
crimes, and of prescribing penalties, whether
light or severe. Commonwealth v. Murphy,
165 Mass., 66 (42 N. E., 504, 30 L. R. A.,
734, 52 Am. St. Rep., 496) ; Southern Express
Co. V. Commonwealth, 92 Va., 66 (22 S. E.,
41 L. R. A., 436). For such a fundamental
proposition I need cite no further author-
ity. . . .
"Guided by the rule that, in the matter of
penalties for criminal offense, the courts will
not disturb the discretion of the legislature,
save in extreme cases, we cannot hold that
vasectomy is such a cruel punishment as
cannot be inflicted upon appellant for the
horrible and brutal crime of which he has
been convicted."
The .foregoing is the only case bearing
upon any feature of a sterilization law, and
that is confined to the constitutionality of
the punishment provided.
The statutes of the states of Washington
(first law) and Nevada both limit the
operation to an habitual criminal, any
person adjudged guilty of the carnal abuse
of a female person under the age of ten
years, or of rape, and contemplate the
imposition of such operation as further
punishment, while Indiana, California, Con-
necticut, New Jersey, Iowa, and New
York have laws which provide for perform-
ing the operation upon all such persons con-
fined in the state prison, and other state in-
stitutions, who are likely to produce children
with an inherited tendency to crime, insanity,
feeble-mindedness, idiocy or imbecility.
The New Jersey and New York laws are
expressly limited in their application to crim-
inals, as follows:
"The criminals who shall come within the
operation of this law shall be those who
have been convicted of the crime of rape, ot
of such succession of offenses against the
criminal law as in the opinion of this Board
of Examiners shall be deemed to be suffi-
cient evidence of confirmed criminal tenden-
cies."
And each statute provides for the appoint-
ment of counsel to represent the person to
be examined at the hearings of the board,
and in any subsequent proceedings, and per-
mits an appeal from any order of the board
to the Supreme Court, or any Justice there-
of, and the court may, on appeal, grant a
stay which shall be effective until such ap-
peal shall have been decided.
The other state laws make no provision
for the appointment of counsel, or an appeal
from any order of the board.
The laws of Connecticut, New York and
Iowa, prohibit the performance of the oper-
ation, except as authorized by the respective
acts, unless the same shall be a medical
necessity. Therefore the only persons eli-
gible for the operation in those states are
the persons confined in the institutions
named.
This prohibition is based upon the police
powers of the State, and the legislature
doubtless justified it upon the theory that it
Legal Opinions
333
would be dangerous to society to permit
healthy men and women to cause themselves
to be deprived of the natural power of pro-
creation. I am of the opinion, however, that
some board should have the authority to per-
mit such operation to be performed upon any
individual, whenever such individual is able
to satisfy the board that his purpose is to
prevent producing children with an inherited
tendency to crime, insanity, disease, feeble-
mindedness, idiocy, or imbecility. It is il-
logical to limit the 'application of the law to
the inmates of prisons and asylums, and to
make it a penal offense to perform the
operation on anyone else. The law should
provide for a state board with power to ex-
amine individual applicants, as well as the
inmates of state institutions, and order the
operation performed in every case where the
person exanjined would be likely to produce
children with any of the above tendencies.
Many persons inherit a tendency to insan-
ity or disease, who may desire to avoid trans-
mitting such tendency to their children, and
they should be permitted to obtain legal
sanction for submitting to the operation of
vasectomy.
Some features of our statute, in my judg-
ment, are objectionable and should be
changed, but I find nothing intrinsically un-
reasonable in the law. It applies equally to
all of certain classes of persons, which per-
sons may be regarded as requiring special
legislation for the. protection from them of
the community at large. It may be taken
as a determination by the General Assembly
that a law of this kind is necessary for the
preservation of public health and morals,
and- no one at all familiar with the facts will
question the essential justice of such deter-
mination. The classes of persons to which
the statute applies are capable of endanger-
ing the health, morals and good character
of our people and adding greatly to the sum
of human suffering. There is no discrimina-
tion among the members of such classes.
The principles laid down in such cogent lan-
guage by Chief Justice Baldwin, in the case
of Gould V. Gould, supra, are capable of a
wider application than the mischief which
gave them birth; they may reach as far as
the needs of society.
There are no individual rights under the
Constitution superior to the common wel-
fare. The whole of society is greater than
any of its parts. No man is permitted to
claim the right to beget children with an
inherited tendency to crime, insanity, feeble-
mindedness, Idiocy, or imbecility.
In determining the constitutionality of
such a law, there may be ground for some
distinction between different classes of in-
dividuals embraced within its terms. No one
will question that the sterilization of idiots
and imbeciles may be regarded within the
police power of the state, but some may
doubt whether the sterilization of criminals
can be supported on the same ground. I be-
lieve that the sterilization of such criminals
as are included within the purview of our
statute may be. The inmates of the institu-
tions named in the act are brought by penal
and police regulations into the custody and
care of the State, and constitute a special
class. The State assumes under the law an
obligation to this class and to the public
which does not obtain in relation to any
other class of our citizens, therefore the
application of the sterilization law to this
class alone is reasonable and it cannot be
said to deprive such class of "the equal pro-
tection of the law" vouchsafed by the Four-
teeenth Amendment of the Constitution of
the United States.
For the foregoing reasons, I am of the
opinion that the statute in question is con-
stitutional.
Respectfully submitted,
JNO. H. LIGHT,
Attorney- General.
4. ADDITIONAL OPINION BY THE
ATTORNEY-GENERAL OF CON-
NECTICUT.
The Act Authorizing Operations for the
Prevention of Procreation Is Not in
Conflict with the Fourteenth Amend-
ment of the Constitution of the
United States.
Hartford, January 8, 1913.
Dean Henry Wade Rogers,
Law Department Yale University,
New Haven, Conn.
My Dear Mr. Rogers — This is the first
opportunity I have had to reply to your fa-
vor of the 30th ult.
I have given an opinion to the Directors
of the Connecticut State Prison through
Warden Garner in which I hold that Chap-
ter 309 of the Public Acts of 1909, being "An
Act Concerning Operations for the Preven-
tion of Procreation," is constitutional. I
have requested my secretary to send you a
copy of the opinion.
At first blush I thought that the act was
unconstitutional, but after a 'careful exami-
nation of the provisions of the act and nu-
334
LEGai< Opinions
merous authorities, I came to the conclusion
that the act is constitutional.
The Fourteenth Amendment of the Con-
stitution of the United States gave me con-
siderable pause. I considered very carefully
whether the State through this law would
"deprive any person of life, liberty or prop-
erty, without due process of law; or deny
to any person within its jurisdiction the
equal protection of the laws."
I understand the essential elements of "due
process of law" are notice and opportunity
to defend. But due process does not require
any particular form of proceedings to be ob-
served, but only that the same shall be regu-
lar proceedings, in which notice is given of
the claim asserted and opportunity afforded
to defend against it.
Smith V. State Board of Medical Examin-
ers, 117 N. W., 1116. It appears to me that
no member of the class enumerated in the
statute can claim the right to produce chil-
dren with an inherited tendency to crime,
insanity, feeble-mindedness, idiocy, or imbe-
cility; therefore, the statute is a reasonable
police regulation for the protection of the
health, morals and safety of the people, and
the discrimination rests upon a proper basis.
Within constitutional limits, the legislature
is the sole judge as to what laws should be
enacted for the protection and welfare of the
people and as to when and how the police
power of the State is to be exercised.
State V. Drayton, 117 N. W., 76a; N. J. Ch.,
190S.
The public policy of the State is the crea-
ture of the legislature and the courts have
nothing to do with forming it and can only
recognize it like any other matter of public
law.
The "equal protection of the law" means
equal security or burden under the law to
all similarly situated, and the law must bear
alike on all individuals, classes and districts
which are similarly situated, the real purpose
of the amendment being to prevent arbitrary
and capricious legislation; therefore, to con-
stitute equal protection of the law, it is only
necessary that there be equality among
those' similarly situated.
I think that the inmates of the State
Prison and the Insane Hospitals at Middle-
town and Norwich are essentially in a class
by themselves, and the State necessarily as-
sumes a diflferent relationship to them than
to any other classification of a part of our
people.
I believe, however, that the law is defective
and should be amended. In my opinion the
power to examine and order an operation of
vasectomy or oophorectomy should belong
to the State Board of Health, and the Di-
rectors of the State Prison, and the Super-
intendents of the State Hospitals at Middle-
town and Norwich, might be authorized to
have any inmate examined with a view of
having said operation performed, and in such
case the inmate to be examined should be
privileged to have an attorney appointed to
appear for him at the expense of the State.
And, furthermore, any individual should
have the right to make application to the
Board to be examined, and in case sufficient
reason be shown, to be authorized to have
said operation performed on himself or
herself.
I shall be pleased to aid in any possible
way the Social Hygiene Society in obtain-
ing such amendments to the law as may be
thought desirable.
Sincerely yours,
JNO. H. LIGHT,
Attorney-General.
5. OPINION BY LOUIS MARSHALL,
ESQ., OF THE NEW YORK BAR.
The following opinion is rendered by
Louis Marshall, Esq., in a letter to Hon.
Warren W. Foster, Judge of the Court of
General Sessions of New York City.
Guggenhfeimer, Untermeyer & Marshall,
- No. 37 Wall Street, New York.
April 12, 1912.
Dear Judge Foster:
I am in receipt of your several letters, in
which you ask my opinion with respect to
the constitutionality of legislation which has
been proposed for the sterilization of crim-
inals and degenerates by means of the oper-
ation of vasectomy. I regret that I have
been so situated as to be unable to give the
subject the careful study to which it has been
entitled. It has been my intention to do so,
but you are apparently desirous of an imme-
diate expression erf my views, and I will
therefore state them in mere outline, without
elaboration or argument.
Doubtless the state has the pow^r, in the
administration of punishment to offenders
and in dealing with those who may imperil
the safety of the public, to segregat" them
and to exercise a general supervision over
them. The exercise of this function comes
IvUGAiv Opinions
335
strictly within the police power of the state,
since it affects the public safety and welfare.
In the case of criminals the state has the
power to impose more drastic punishment
upon second offenders and upon habitual
criminals than it sees fit to impose upon first
offenders. It has likewise the power to
impose indeterminate sentences upon those
convicted of crime.
Except so far as prohibited by the consti-
tutional prohibition against the imposition
of cruel and unusual punishment,. I believe
that it is within the power of the state to
inflict the death penalty in such cases as at
common law were subject to that punish-
ment, and to impose imprisonment up to the
limit of incarceration for life, due regard
being had to the nature and character of the
crime sought to be punished.
The prohibition against the infliction of
cruel and inhuman punishment is difficult of
precise definition. It is generally understood
to have reference to the imposition of torture,
of a punishment which is barbarous and
wanton and repugnant to the public con-
science. Electrocution has been held not to
constitute cruel and unusual punishment
within the inhibition of the Constitution, in
People ex rel Kemmler vs. Durston, 119
N. Y. 569, affd. 136 U. S. 436, 446. The de-
capitation of the hand of a kleptomaniac, the
branding of one who has committed the
crime of burglary or the amputation of the
sexual organs of one guilty of adultery would
doubtless, in this age, be deemed cruel and
inhuman punishment.
The most recent decision on the subject
is to be found in Weems vs. United States,
217 U. S. 349, where the Supreme Court held
a provision of the Penal Code of the Philip-
pine Islands to impose cruel and inhuman
punishment insofar as it prescribed for an
offense by an officer of the government who
made false entries in public records, the
obligation to pay a large fine, imprisonment
during twelve years, with accessories such
as the carrying of chains, the deprivation of
civil rights during imprisonment, perpetual
disqualifications to enjoy political rights, to
hold office thereafter, and the subjection to
constant surveillance. In the dissenting
opinion of Mr. Justice White, in which Mr.
Justice Holmes concurred, there are collated
a large number of precedents, which indicate
the extent to which courts have sustained
statutes imposing drastic penalties even
though they were claimed to be cruel and
unusual.
I understand that the operation of vasec-
tomy is painless and has no effect upon the
person upon whom it is imposed other than
to render it impossible for him to have
progeny. If it could be said that such a
punishment would only be inflicted in the
case of confirmed criminals, there would be
strong reasons, founded on considerations
of the public welfare, which would justify
its imposition. The danger, however, is that
it might be inflicted upon one who is not an
habitual criminal, who might have been the
victim of circumstances and who could be
reformed. To deprive such an individual of
all hope of progeny would approach closely
to the line of cruel and unusual punishment.
There are many cases where juvenile offen-
ders have been rendered habitual criminals
who subsequently became exemplary citi-
zens. It is true that these cases are infre-
quent, and yet the very fact that they exist
would require the exercise of extreme caution
in determining whether such a punishment
is constitutional.
Although not entirely certain as to this
phase of the case, I have no doubt that the
imposition of such a penalty by a commis-
sion or state board, or by any tribunal other
than a court which is to determine the
penalty for the offense of which one charged
with crime has been convicted, would be un-
constitutional. The determination that such
an operation shall be performed necessarily
involves the infliction of a penalty. Unless
justified by a conviction for crime, it would
be a wanton and unauthorized act and an
unwarranted deprivation of the liberty of the
citizen. In order to justify it the person
upon whom the operation is to be performed
has, therefore, the right to insist upon his
right to due process of law. That right is
withheld if the vasectomy is directed, not by
the court which imposes the penalty for the
crime, but by a board or commission, which
acts upon its own initiative or which, under
a general provision of law, undertakes to
determine whether or not the operation shall
be performed on a specific individual.
In this aspect of the case it seems to me
that the decision of the Court of Appeals
in People ex rel Barone vs. Fox, 202 N. Y.
616, which adopted the dissenting opinion
of Mr. Justice Clarke in 144 App. Div. 611,
is conclusive. In that case it was held that
Section 79 of Chapter 659 of the Laws of
1910, authorizing the physical examination
by a physician of a woman convicted of dis-
orderly conduct in that she is a common
336
Legal Opinions
prostitute, in order to discover whether she
is afflicted with any communicable venereal
disease and authorizing the magistrates of
inferior courts of criminal justice in the City
of New York to commit her to a public
hospital for treatment for such disease for a
certain period not exceeding one year or
until she shall be cured, is unconstitutional,
since the magistrate is bound by the report
of the physician so that the convicted person
is deprived of her right to have the fact of
the existence of the disease officially deter-
mined by the magistrate.
So in regard to the legislation which you
now have under consideration, it is my firm
opinion that the court which imposes the
sentence upon the prisoner can alone impose
the penalty of vasectomy, the prisoner being
first accorded an opportunity to be heard by
the court on the question as to whether or
not such penalty shall be inflicted.
To go further than to lay down these
general principles, and to attempt to formu-
late a statute which would fully cover the
various questions which may arise in re-
spect to the application of this remedy, is at
present impossible for me. I shall continue
to consider the subject, which is intensely
interesting and important, and if any further
ideas suggest- themselves to me I shall be
very glad to communicate them to you.
I fear that the public is not as yet prepared
to deal with this problem; it requires educa-
tion on the subject. I cannot, however, re-
frain from expressing the general opinion
that the movement is one which is based on
sound considerations. The difficulty is, how-
ever, in adopting proper safeguards to ade-
quately protect those who are not hopelessly
confirmed criminals, degenerates, or defec-
tives.
It is my recollection that I have recently
seen a case decided by the Supreme Court of
Indiana which has a strong bearing upon this
question, but I cannot for the moment lay
my hands on it. If I find it I shall send you
a reference to the decision.
Very, truly yours,
(Signed) LGUIS MARSHALL.
HON. WARREN W. FOSTER,
32 Franklin Street,
New York City.
6. BRIEF BY CHARLES A. BOSTON,
ESQ., OF THE NEW YORK BAR,
Contending that the Recent Sterilization
Laws are Unconstitutional.
On December 14, 1911, Charles A. Boston,
Esq., of the New York Bar, addressed the
Society of Social and Moral Prophylaxis at
the New York Academy of Medicine, on the
subject, "A Protest Against Laws Authoriz-
ing the Sterilization of Criminals and Imbe-
ciles." A copy of his notes on the subject
are on file at the Eugenics Record Office.
They constitute essentially a lawyer's brief
against sexual sterilization as an invasion of
the Bill of Rights. These notes were organ-
ized into an article under the above-named
title, which appeared in the "Journal of the
American Institute of Criminal Law and
Criminology"' (1913-1914, Volume IV,
Number 3, pp. 326-358.)
SUMMARY.
1. Legal opinion is divided more on the
subject of the policy of eugenical sterilization
than upon its constitutionality.
2. If due provision is made for respecting
the so-called "Bill of Rights," there is prac-
tical unanimity of legal opinion in support
of the power of the State in the normal exer-
cise of its police authority, to enact laws
providing for the sexual sterilization of cer-
tain natural classes of defectives or degener-
ates in the population of the State.
> Brief abstracts of all references to sterili-
zation which appeared in this Journal are
given In Section 11 of Chapter V, pp. 117, of
this book, under the subject "Th« Bcsiul
StarlllsKtlon of OrinUnali."
CHAPTER X.
THE RIGHT OF THE STATE TO LIMIT HUMAN REPRODUCTION
IN THE INTERESTS OF RACE BETTERMENT.
Introduction 338
A. Parallel Cases of the Restriction of Personal Liberty in the Interests of
the General Welfare.
1. Compulsory vaccination 339
2. Quarantine 341
B. Legislative and Judicial Activities Regulating or Limiting Human
Reproduction. ^
1. Limitation of Marriage ' 342
a. List of legal limiting causes 343
b. The special case of venereal and other transmissible diseases.
bl. Analysis of laws limiting marriage on account of venereal or
other transmissible diseases 343
b3. Constitutionality of the Wisconsin statute requiring certificate'
of health for males before marriage license is issued 344
c. Judicial annulment of marriage in the interests of public health and
racial welfare 345
cl. Wisconsin Supreme Court 345
c2. New York Supreme Court (New York County) 345
c3. New Jersey Court of Chancery (Concealment of insanity) 346
c4. New Jersey Court of Chancery (Concealment of venereal
disease) 346
2. Birth Control 346
a. Review of criminal statutes on Birth Control: Judge J. C. Ruppen-
thal 347
b. Conclusions 348
3. Control of Immigration 349
4. Institutional Segregation of Social Inadequates 350
a. Quotation from Dr. Henry M. Hurd 350
b. Conclusion 351
5. Eugenical Sterilization.
a. Cases of eugenical sterilization in states having neither authorizing
nor restricting statutes 351
al. Case of M H of Massachusetts 353
a2. Case of "' X " of Illinois 354
b. Legal situation in England 355
bl. Would it be lawful to sterilize? 355
b2. Who should operate? 356
b3. Penalties for wrongfully operating 356
c. Concluisi'dn ■ .• • • • 356
C. Possible New Fields for Eugenical Legislative Activity 356
1. Eugenical Education 356
2. Compulsory Reporting of Cases of Cacogenesis 357
3. Registering Trained Eugenical Investigators 358
Summary 359
338
State Rights Rb; Limitation of Human Reproduction
INTRODUCTION.
The proposal to enact eugenical steriliza-
tion laws naturally calls up the question of
the constitutionality of the statutes under
which the state, through the exercise of its
police power, would extend its control over
human reproduction to the extent of seizing
certain individuals proven by pedigree-study
to be potential parents of degenerate or de-
fective offspring, and by surgical operation
or medical treatment, destroying their re-
productive powers.
Although eugenical sterilization is a very
ancient means of conscious effort to con-
serve and improve certain human races, still
the proposal to use this means on an exten-
sive scale by the authority of statutory law
is a relatively new* principle in American
legislation. The bolstering up of our de-
fective strains by the recent great develop-
ment of American custodial institutions ^ for
the insane, feeble-minded, criminalistic and
other types of the socially inadequate, has
created a problem in race-conservation, the
degree of which we have not heretofore
been compelled to face. Our states are de-
voting from 5.4% (Alabama, 1915) to 30.5%
(Massachusetts, 1915) of their total state
expenditures to maintaining state institu-
tions for the socially inadequate. American
states, in the interest of the general welfare,
have exercised many novel and radical police
functions, quite as extreme and no more
beneficial than eugenical sterilization. Gen-
erally such activities are justified and upheld
by the courts, if they can be directed by
laws not running counter to the bill of
rights, and have for their purpose tjie im-
provement of the well-being of the state,
and can demonstrate their fitness in ac-
complishing their stated purpose. Many of
them seek directly to benefit the natural
physical, mental and moral qualities of the
nation.
A state does not hesitate in the interests
of organized society to take the life of an
individual. This in modern practice is al-
ways in punishment for crime, but crime is
not the only type of anti-social or of socially
ineffective conduct. Crime is, it is true, the
only type of such behavior which carries
blame with it. But the other types of social
inadequacy equally destructive to the securi-
ty and vigor of the nation, while not carry-
ing blame, carry pity, shame, chagrin,
ineffectiveness, and degeneracy.
At this point mention might well be made
of military conscription. Every soverign
state claims this right, although it involves
most arbitrarily the control of the conduct
and services of the citizen, and places him
in great jeopardy of life. It is absolutely
non-punitive, but is demanded by the prin-
ciple that, in the long run, the welfare of
the commonwealth is of vastly more im-
portance to the sum total of human happi-
ness than is the temporary freedom and
personal security of the individual. Personal
jeopardy is highly preferable to injury to
the state. If we compare the right and duty
of military conscription with the right and
duty of the state to control human reproduc-
tion in the interests of the common welfare,
we find that the latter impinges not more
upon individual freedom, but with fully as
much ultimate common benefit.
Within modern times, civilized states have
resorted to banishment as a means of pro-
tecting their organized society. At present
in American states those types of social
inadequacy, other than crime, which destroy
the effectiveness of the individual and the
peace and prosperity of the state, are taken
care of in a humane manner by custodial
institutions. In such institutions the liberty
of the individual is just as completely taken
away as in the case of imprisonment for
crime. The state may restrain its irrespon-
sible members, under the undoubted exercise
of its police power, which permits the most
severe practice, if in the end the general wel-
fare of the organized social life of the com-
munity is promoted.
Euthanasia is not resorted to in our most
highly civilized states, but in some of the
less advanced communities of the world,
especially those in which the population
crowds closely upon the food supply, it is
common to remove, often by non-punitive
death, the members least necessary to the
life of the tribe. The direct means of con-
trolling the racial quality of future genera-
tions available to our more enlightened and
humane states are the legal control of immi-
gration and of marriage; social punishment
for illegitimacy; the regulation of attempts
at birth-control, abortion, and infanticide;
teaching the better classes the truth concern-
ing human heredity and the necessity of fit
1 First bin vetoed 1905, Pennsylvania. First
law enacted 1907, Indiana.
" See Statistical Directory of State Institu-
tions for the Defective, Dependent and De-
linquent Classes, H. H. Laughlln, Bureau of
the Census, 1919.
STATE Rights Re Limitation oe Human Reproduction
339
and fertile matings among those with the
best natural endowments; and finally the
limitation of reproduction of degenerates by
eugenical sterilization. The novelty of the
proposal cannot militate against its legality,
if it is proven effective for the purpose pro-
posed. When in capital punishment electro-
cution was found to be more humane than
hanging, it was readily adopted by a number
of states. Vaccination may seem harsh and
cruel, but when humanely applied the courts
have quite universally held that the state is
well within the exercise of its undoubted
police power in ordering its compulsory
application.
Ultimately the state must find a biolog-
ically, socially, morally, and economically
superior substitute for war, pestilence, and
famine in culling the human species of its
defective strains. Also the state must find
eugenically the means to undo the racial ill
innocently done the nation by society's chari-
tably fostering defective individuals up to
parenthood, and encouraging their reproduc-
tion. Such pampering has been done by the
recent great development of outside charity
and hospitalization. The principle here to be
applied should be: By all means aid, to the
full extent of society's ability, the poor, the
unfortunate and the suffering, but permit
only those individuals most splendidly en-
dowed by nature, with socially valuable
physical, mental and moral qualities, to re-
produce.
Thus a democracy, in order to live, must
be willing to investigate new social remedies,
to try them out and to accept those which
prove adequate to promoting national effect-
iveness and racial vigor — the general welfare,
it is called in law. The principal guide in
trying out novel social legislation is that the
activity provided for shall not transgress our
Bill of Rights, which we have built up
through the centuries at so great an effort.
Measures for race improvement must, of
course, be effected through due process of
law and without denying the equal protection
of the laws to all of the inhabitants of the
state. Except in cases involving crime, there
must be no element of punishment in them.
Every .measure designed for promoting the
general welfare must stand the practical test
of being an effective agency for promoting
the good of the race to a degree entirely in
keeping' with the severity or radicalness of
the remedy.
With all species, including man, the life
and well-being of the race or nation, as a
whole, are vastly more important than the
unrestricted and unsocial conduct of the indi-
viduals who compose the race, because ex-
perience has proven that in the long run
individual effectiveness and happiness is
assured and promoted only by individual
subordination and occasional personal sacri-
fice. The sum total of human freedom and
human happiness will be greatly promoted,
in the long run, by eugenical processes which
call for the elimination of degenerate and
handicapped strains, from the racial stocks,
and the increase of numbers' of citizens highly
endowed by nature with splendid mental,
physical, and moral qualities. The state,
then, must exercise its undoubted right and
duty to control human reproduction along
the lines of race betterment, and in so doing
is fully justified in putting into effect such
measures as, in keeping with the Bill of
Rights and humane principles, will bring
about the desired ends.
A. PARALLEL CASES OF THE RE-
STRICTION OF PERSONAL LIB-
ERTY IN THE INTERESTS OF THE
GENERAL WELFARE.
Since the proposition to sterilize eugen-
ically involves the taking away, in the
interests of the state, of a natural endowment
of an individual, namely, the reproductive
power, it is pertinent to cast about for legis-
lation and court decisions which relate to
processes bearing an analogy to some aspects
of eugenical sterilization. In compulsory
minor surgical treatment and in infringement
upon personal liberty, in the interests of the
general welfare, the state's work in vaccina-
tion and quarantine is found to be pertinent.
1. Compulsory Vaccination is analogous
to compulsory eugenical sterilization to the
extent that both are non-punitive and that
both involve the seizure of the individual
and subjecting him or her to surgical treat-
ment. Both vaccination and sterilization are
done supposedly for the public good. Vacci-
nation protects the individual and his asso-
ciates from a serious and loathsome disease
in the more immediate future; eugenical
sterilization protects society from racial de-
■igeneracy in the mc*e remote future. Vacci-
nation, however, in its operative seriousness
and pathological possibilities, greatly exceeds
vasectomy, but not castration, in the male,
but may not on the average be said to equal
in seriousness sterilization of the female by
any known process except possibly by X-rays.
340
State Rights Re Limitation oe Human Reproduction
The following brief history of legislation and
litigation, however, sustains the view that
the State may, in the interests of public wel-
fare, impose compulsory vaccination upon
its residents.
From Public Health Bulletin No. 53, pub-
lished in January, 1913, and written by J. W.
Kerr, Assistant Surgeon General, we quote
from page 16:
"Questions relating to vaccination have been
brought before the judicial branch of the
Government under all possible aspects. The
courts have been called upon to decide the
constitutionality of statutes requiring vacci-
nation, the power of the legislature to dele-
gate authority to require vaccination, the va-
lidity of local ordinances or regulations en-
forcing vaccination, the price of vaccination,
,the responsibility for the expenses of vaccina-
tion, the form of the certificates used, what
vaccination is, whether failure to vaccinate a
child constitutes negligence, etc.
"Power of States to Enact Compulsory Vac-
cination ^aws. — All disputes regarding \ the
right of State legislatures, in the exercise of
the police power, to enact statutes making
vaccination compulsory were definitely settled
by the decision of the Supreme Court of the
United States in the case of Jacobson v.
Massachusetts (197 U. S., 11). The highest
tribunal of the land had already as an obiter
dictum in Lawton v. Steele (152 U. S. 136)
enunciated the principle that the State might
order the compulsory vaccination of children,
but the Massachusetts case was the first in-
stance in which the validity of a State law
requiring vaccination was questioned before
the Supreme Court on constitutional grounds,
the court ruling that the police power of the
State covered such cases, and it was for the
legislature an*d not for the courts to deter-
mine whether vaccination was or was not the
best preventive measure against smalliJox.
"Similar conclusions have been reached or
assumed by a number of State courts with re-
spect to compulsory vaccination or making
vaccination a condition of attendance at
school, signally, in Abeel v. Clark (84 Cal.
226); State Bd, of Health v. Board of Trus-
tees (110 Pac, 137); 143 Cal., CBS; Blssell v.
Davidson (65 Conn., 183); Harris v. Cox, D. C.
Law No. 53015; Morris v. Columbus (102 Ga.,
792); Blue v. Beach (115 Ind., 121); Osborn v.
rtUHsell (64 Kans., 507); Com. v. Pcnr and Com.
V. Jacobson (183 Mass., 2 12); Vlcnieistor v.
White (179 N. Y„ 235); re Smith (H6 N. Y.,
68); State v. Hay (126 N. C, 999); Field V.
Robinson (198 Pa., 638); Stull v. Kobor (215
Pa., 156); McSween v. Bd. of School Trustees
(129 S. W. R., 206); State v. Shorrock (55
Wash., 208); the case of State v. Burdge (95
Wis., 390) being the only one In which the
court refused to commit itself to the validity
of such legislation, taking the view that the
question was not presented by the record.
"Delegation of Authority. — The doctrine
that State legislatures have power to delegate
their authority to enforce vaccination to local
authorities has been maintained In Morris v.
Columbus (102 Ga., 792); Com. v. Pear (183
Mass., 242); re Smith (146 N. Y., 68); State
V. Board of Education (81 N. B. R., 568); and
somewhat more reservedly in Osborn v. Rus-
sell (64 Kans., 507); and Mathews v. Board
of Education (127 Mich., 530).
"Power of I^ocal Autliorities in the Abeence
of I^eglslatlon. — There is a decided lack of har-
mony In the decisions of the courts regarding
the power of State or local authorities to
make vaccination a condition to school attend-
ance when no specific authority has been
granted by the legislature. The exercise of
this power has been upheld in Austin v. School
Board (83 Ark., 431); Blue v. Beach (155 Ind.,
121); 157 Ind., 25; State v. Zimmerman (86
Minn., 353); re Rebenaok (62 Mo. Ap., 8);
State V. Cole (220 Mo., 697); Hutchlns v. Dur-
Jiam (137 N. C, 68); Duffield v. School District
(162 Pa., 476); Glover v. Board of Education
(14 S. D., 139); McSween v. Board of School
Trustees (129 S. W. R., 206); and State v.
Board of Education (21 Pac, 401); while the
use of this power has been animadverted
against and its legality denied in Morris v.
Columbus (102 Ga., 792); Potts v. Breen (167
111., 67); Lawbaugh v. Board of Education (177
111., 572); 234 111., 422; Osborn v. Russell (64
Kans. 507); Mathews v. Board of Education
(127 Mich., 530); and State v. Burdge (95 Wis.,
390). Although in some of these cases, nota-
bly in the Illinois and Michigan cases, the
opinion was expressed that during epidemics
or as an emergency measure unvacclnated
children might be excluded from school
"Mention must be made of the fact that
after the decisions in the cases of State v.
Zimmerman (86 Minn., 353); Glover v. Board
of Education (14 S. D., 139); and State v.
Board of Education (21 Utah, 401), acts were
promptly passed by the State legislatures of
Minnesota, South Dakota, and Utah forbidding
compulsory vaccination."
We quote two decisions, the first by the
California District Court of Appeal, First
District, in the case of Williams vs. Wheeler
(Dec. 31, 1913) (138 Pacific Reporter, 937).
"The history of the legislation on the sub-
ject shows that the State of California stands
committed to the policy of requiring vaccina-
tion as the best preventive means known to
medical science for lessening the liability to
Infection with a dreaded and dangerous dis-
ease.
"I'hc board of regents of the University of
California has the right to make and enforce
rea,sonable rules requiring vaccination as a
condition of admission to the university.
"The Keneral health is one of the subjects
over which the State legislature has control
thnuigh the police power, and in the exercise
of that control It has the power to pass gen-
feral laws. In the nature of health regula-
tions, requiring that persons admitted to edu-
cational institutions shall be vaccinated.
"The rules of the board of regents of the
ITnlvcrslty of California required vaccination
as a prerequisite to the admission of students
to the university. A general State law re-
quired that students entering educational in-
stitutions in the State must be vaccinated, but
a iirovlslon of the law made an exception In
State Rights Re Limitation op Human Reproduction
341
cases where the students or their parents or
guardians were conscientiously opposed to
vaccination. The court held that this provi-
sion of the law was not a health regulation
and not within the general police powers of
the legislature, and that, in view of the broad
powers given to the board of regents of the
State university by the constitution, the pro-
vision in the State law did not nullify or
alter the rule of the board of regents."
The following is a decision of the Ken-
tucky Court of Appeals in the case of the
Trustees of Highland Park Schoql District
vs. McMurtry (Apr. 13, 1916) (184 South-
western Reporter, 390).
In Kentucky the State board of health and
the local boards of health are both charged,
independently, with the preservation of the
public health, and they have power to take
such action as in the exercise of a reasonable
discretion may be deemed necessary to sup-
press and prevent the spread of any infec-
tious or contagious diseases.
Under the laws of Kentucky, when a small-
pox epidemic is threatened, it is within the
power of a local board of health to require all
children attending school to be vaccinated.
a' plea for compulsory vac-
cination IN DEFENSE OF AS-
SEMBLY BILL NO. 474 ENTITLED,
"AN ACT REGULATING VACCINA-
TION IN THE STATE OF NEW
YORK."
By CYRUS EDSON, M. D.
Health Department, City of New York.
1889.
Page 1. (In listing the reasons).
No. 2. "That compulsory vaccination is
an invasion of personal liberty."
Pages 5-6 (In reply) :
"It is alleged that the compulsory vacci-
nation is an invasion of personal liberty.
To a certain extent it is. But is not enforced
isolation, removal to the so-called pest-house,
a much greater invasion of liberty?
"It is my duty to remove to the smallpox
hospital all cases of the disease that occur
in tenements, apartment houses, hotels,
boarding-houses, etc., in New York City.
I have seen the babe taken from the arms of
its heart-broken mother. Is not this a much
greater invasion of personal liberty? It is
authorized by the health laws. Compulsory
vaccination will do more to effect the pre-
vention of such cases than any other measure
that can be devised. We have in New York
City a class, mostly Bohemians, who are a
source of danger to the rest of the people by
reason of their prejudice of vaccination.
When smallpox appears among them it is
almost impossible to stamp it out. Compul-
sory vaccination will enable us to compel
these people to be protected against small-
pox. They will yield only to the strong
hand of the law."
PENNSYLVANIA STATE VACCINA-
TION COMMISSION.
Report and Dissenting Reports.
March, 1913.
Pages 136-7.
Vaccination Laws in Other Lands:
In practically all of the armies and navies
of the civilized world, vaccination and re-
vaccination are compulsory.
(The following list is given of countries
having compulsory vaccination laws).
Germany, 1875; Japan, 1885; Hungary,
May, 1887; Italy, March, 1893; Roumania,
1894; France, 1902. Sweden requires that
children must be vaccinated "before the age
of three." Norway has indirect compulsion,
requiring the vaccination of all school
children.
Denmark, by royal decree, April 3, 1810,
made attendance at school, permission to
receive confirmation, and to be married in
the church, dependent on proof of vaccina-
tion. It also decreed compulsory vaccination
in time of smallpox epidemics. Children
must be vaccinated before the age of seven.
Belgium. Indirect compulsion through
vaccination of school children.
Holland. 1892.
England: The present law requires that
every child shall be vaccinated before reach-
ing the age of six months; the penalties of
this law may, however, be avoided by a
declaration under oath of conscientious ob-
jection to vaccination.
Conclusion.
The legal aspects of the vaccination prob-
lem may be summed up as follows: In the
absence of constitutional provision to the
contrary, a state may, in the exercise of its
police power, enact compulsory vaccination
laws. Their enactment is a matter of policy
wholly within the discretion of the legis-
lature.
2. Quarantine. Quarantine involves a sus-
pension of the right of a diseased or exposed
individual or household to move about in the
community, or in any other manner to come
in close contact with fellow citizens who are
not suffering from or have not been exposed
to the same disease. It is analogous to
342
State Rights Rt Limitation of Human Reproduction
eugenical sterilization in that both are non-
punitive, and that both appear to be abridg-
ments of personal liberty of a most serious
nature.
Quarantine is found to be such a valuable
agency in protecting the public from the
menace of the spread of contagious diseases
that the state has assumed the rights to make
suitable quarantine regulations and the courts
have sustained their respective states in the
reasonable and sound exercise of such author-
ity. In the present connection it is pertinent
to learn whether, in each particular case, a
ministerial or administrative agency, duly
established by legislative enactment, may, of
its own discretion, impose the quarantine re-
striction on a given individual, or whether
the removal of such natural liberty as the
quarantine involves requires in each particu-
lar case court procedure with the right possi-
bly to trial by jury.
The Illinois Supreme Court, in the case of
the People vs. Tait (Dec. 17, 1913), handed
down the following decision:
"The legislature may, in the exercise of
the police power of the state, create ministe-
rial boards with power to prescribe ruleS and
impose penalties for their violation, and pro-
vide for the collection of such penalties, and
the exercise of this power by the legislature
is not a delegation of legislative power.
"Rules and regulations of boards of health
must be written, adopted in an official
manner, and duly entered of record.
"An Illinois law authorized county boards
of health to make and enforce rules and
regulations to check the spread of communi-
cable diseases. The defendant was charged
with failing to comply with quarantine regu-
lations established by the County Board of
Health, and was convicted in the lower court,
but the Supreme Court reversed the judg-
ment because it did not appear that the rule
or regulation under which he was convicted
was in writing and had been regularly
adopted by the Board of Health and duly
entered of record."
Conclusion.
Quarantine is so demonstrably adapted to
promoting the health of the people that,
despite its non-punitive taking away of per-
sonal liberty, it is undoubtedly constitutional
in each of the several states. The balance of
private inconvenience against public welfare
is in each case decided in favor of the latter.
B. LEGISLATIVE AND JUDICIAL
ACTIVITIES REGULATING OR
LIMITING HUMAN REPRODUC-
TION.
There are many ways in which the people
of a state, either through the pressure of an
aroused public opinion acting directly in
influencing custom, or acting through its
representatives in the legislature by enacting
statutory laws, may deny the right of re-
production to certain proved defectives or
degenerates.
The marriage and reproduction mores of
a people are so deeply seated in their life that
in a self-governing country no statutory law
affecting them which has not the support of
public opinion may be expected to accom-
plish its stated purpose. If, however, public
opinion is behind the statute, a modern state
by statute may successfully resort to the
means described in this chapter, and possibly
others, in its legislative eflforts to limit or
control the reproduction of individuals social-
ly inadequate from defective heredity.
1. Limitation of Marriage.
The power of the state to limit marriage'
in the interests of race betterment is un-
doubted. Practically any rule having a sound
biological, medical or social foundation may
be enacted into statutory law limiting mar-
riage, provided that such limitation applies
impartially to all residents of the state who
present the given set of limiting conditions.
These given conditions, however, must be
descriptive of a natural class logically and
justly set apart. They must not establish
an artificial class in an unfair or discrimina-
tory manner. The purpose must be laudable,
and its means of attainment must be reason-
able. The principal point, therefore, which
the courts insist upon is that such laws shall
not constitute class legislation, that is, they
shall not deny to any natural group or class
of citizens the equal protection of the laws
guaranteed to the inhabitants of all of the
states by the Fourteenth Amendment to the
Constitution of the United States.
'See 1. American Marrlajre Laws In Their
Social Aspects: Hall and Brooke. Russell
Sage Foundation. 1919.
2. State Laws Limltinz Marriage Selection,
Examined In the Light of Eugenics: Daven-
port, Chas. Benedict. Bulletin No. 9, Eugenics
Record Office, 1913.
3. Marriage and Divorce Laws of the
World: Ringroae. Musson-Draper Co., 1911.
4. Summary of Laws of Several States
Governing Marriage and Divorce of Feeble-
Mlnded, Epileptic and Insane: Smith, "Wilkin-
son & Wagoner. Bulletin No. 82, University
of Washington, 1914.
5. Legal Status of Negro- White Amalgama-
tion In the United States: A. E. Jenks, Am.
Jr. Sociology, March, 1916, pp. 666-678.
State Rights Re Limitation of Human Reproduction
343
a. List of Legal Limiting Causes.
As a matter of fact, state laws limiting
marriage vary in different states on different
subjects with the varying strength and par-
ticular direction of public pressure. Legal
limitations exist in reference to the follow-
ing subjects: (l) age, (2) parental consent,
(3) license, (4) ceremony, (5) bigamy and
previous marriage, (6) consanguinity, (7)
marriage by force, menace, duress, or false
personation, (8) miscegenation, (9) venereal
and other communicable diseases, (10) in-
sanity, feeble-mindedness, epilepsy and other
forms of hereditary degeneracy, (11) crim-
inality, (12) alcoholism and narcoticism.
On each of these subjects the right of the
state to legislate is undoubted. All states
have limitations of some sort, among the
most eugenical of which are those relating to
certain types of miscegenation and those
denying marriage to the insane, feeble-
minded and other constitutional degenerates
or defectives. The present laws deny mar-
riage to individuals personally defective; but,
if modern human pedigree studies have
proven anything, it is that in individuals per-
sonally normal hereditary degeneracy can
be located only by family history study. The
location of such degeneracy is a difficult task,
but is ^necessary as a foundation for the
intelligent purging of the race.
In those states with the highest percentage
of literacy and the greatest development of
state institutions, it would be equally logical
to limit marriage to persons who can demon-
strate the possession .in their family trees of
socially valuable mental, physical and tem-
peramental qualities. This at present may be
a little in advance of public opinion, but as
the eugenical sciences make advance and the
teachings of biology, medicine and sociology
permeate more deeply into the life of the
American people, the demand for the limita-
tion of marriage to persons of demonstrated
natural worth will doubtless be made, and
judging by analogy, when such time arrives
and such laws have been enacted with due
regard for the Bill of Rights, we may logic-
ally expect that the courts will sustain them,
and that the people will demand their enforce-
ment.
b. The Special Case of Venereal and Other
Transmissible Diseaes.
Analysis of only one of these basic factors
for limiting marriage will be made here. The
possession of venereal or other transmissible
diseases as a legal bar to marriage is now
being actually developed by the several
states, so that its legal status and the proc-
esses and vicissitudes of its attainment
become' especially instructive. These laws
restrict the marriage license to otherwise
qualified individuals who can show a clean
bill of health so far as venereal infection is
concerned. Some of them apply to males
only, others to both sexes. This is a new
social remedy which medicine and social
hygiene have developed, which the legisla-
tures have adopted and which the courts
appear to be supporting because it is demon-
strated to be an effective means for promot-
ing general public health. The fact that it is
a new remedy does not appear to destroy its
efficiency nor its constitutionality.
bl. Analysis of Laws Limiting Marriage
on Account of Venereal or Other Transmissible
Diseases (tqso).
Since 1905 thirteen states have, in response
to the recent awakening in social hygiene,
enacted laws limiting marriage on account
of venereal or other transmissible diseases.
The following table gives an analysis of their
essential features:
LAWS LIMITING MARRIAGE LI-
CENSE ON ACCOUNT OF VENER-
EAL DISEASES.
1920.
1. ALABAMA. General Laws, Regular
Session of 1919, No. 178, applicable to males
only.
2. INDIANA. Chapter 126, Acts of 1905,
applicable to both sexes.
3. MICHIGAN. Chapter 83, R. S. 1846,
and Act 128 P. A. 1887 (see C. L. 1915),
applicable to both sexes.
4. NEW JERSEY. Chapter 23, Laws of
1917, applicable to both sexes.
5. NEW YORK. Domestic Relations
Law, Article III, 1917-18, applicable to males
of any age and females under 45 years.
6. NORTH DAKOTA. Chapter 207 S.
L. 1913, and Chapter 237 S. L. 1919, applica-
ble to males of any age and females under
46 years.
7. OREGON. Chapter 187 S. L. 1913,
applicable to males only.
8. PENNSYLVANIA. P. L. 1013, 1913,
applicable to both sexes.
9. UTAH. Title 46, Chapter I. C. L.
1917, applicable to both sexes.
344
State Rights Re Limitation of Human Reproduction
10. VERMONT. P. A. 198, 1918; P. A.
238, 1917; and P. A. 179, 1919, applicable to
both sexes.
11. VIRGINIA. Chapter 300, Acts of
the Assembly, 1918, applicable to both sexes.
12. WASHINGTON. Chapter 174 Ses-
sion Laws 1909, and Chapter 16, House Bill
No. 27, Extraordinary Session 1909, appli-
cable to males of any age and females under
45 years.
13. WISCONSIN. Chapter 107, Laws
of 1917, applicable to males only.
b2. Constitutionality of the Wisconsin
Statute Requiring Certificate of Health from
Males Before Marriage License is Issued.
Perhaps the most far-reaching decision in
reference to one of this particular series of
statutes (erroneously called "The Eugenics
Laws") is that of the Wisconsin Supreme
Court in the case of Peterson vs. Widule
(June 16, 1914) (140 Northwestern Reporter,
966). The court (Winslow, C. J.) held:
"* " * The power of the State to control
and regulate by reasonable laws the marriage
relation, and to prevent the contracting of
marriage bypersoijs afflicted with loathsome
or hereditary diseases, which are liable either
to be transmitted to the spouse or inherited
by the offspring, or both, must on principle
be regarded as undeniable.
"* * ♦ When the legislature passes a consti-
tutional law, that law establishes public
policy upon the subjects covered by it, and
that policy is not open to question by the
courts.
"* * * An argument is made that the law
is void because the classification is unreason-
able, arbitrary, and discriminatory, in that it
singles out men about to marry and makes
a class of them; there being, as it is argued,
no substantial differences which suggest the
propriety of different legislative treatment
between men who are about to marry and
women who are about to marry. Theoret-
ically the argument is strong. Women who
marry and transmit a loathsome disease to
their husbands do just as much harm as men
who transmit such a disease to their wives;
if women were, in fact, doing this thing as
frequently or anywhere nearly as frequently
as men, the argument could hardly be met.
The medical evidence in the case, however,
corroborates what we suppose to be common
knowledge, namely, that the great majority
of women who marry are pure, while a con-
siderable percentage of men have had illicit
sexual relations before marriage, and conse-
quently that the number of cases where
newly married men transmit a venereal dis-
ease to their wives is vastly greater than the
number of cases where women transmit the
disease to their newly married husbands.
Classification is not to be condemned because
there may be occasional instances in which it
does not fit the situation; it is proper if the
great mass of situations to which the law
applies justify the formation of a class and
the application of some special or diflferent
legislative provisions to that class. Classifi-
cation can rarely be mathematically exact.
The question is not whether in some indi-
vidual instance there is any perceptible dis-
tinction, but 'whether there are characteristics
which in a greater degree persist through the
one class than in the other,' and which justify
the diflferent treatment. (State vs. Evans,
130 Wis., 381; 110 N. W., 241.) That there
are such characteristics in the class of un-
married men is as certainly true as it is dis-
creditable to the male sex. •
"It follows that legislation directed against
males alone for the purpose of preventing the
transmission of venereal diseases is clearly
within the police power and just as clearly is
not discriminatory. The only question to be
considered is whether the law which attempts
to accomplish the purpose is unreason-
able or unduly invades constitutional rights
in its methods of enforcement.
"♦ • * por my part I have no sympathy
with this statute. I think it tends to dis-
courage marriage rather than to prevent the
spread of venereal diseases * * *.
"* * * But the ineffectiveness of the law,
or its folly, if it be foolish, or the fact that it
was passed in a modern spirit of legislating
first and investigating afterwards, is quite
remote from the question of its constitu-
tionality. The people must learn to hold
their legislators responsible for the enact-
ment of laws which, however unwise and
absurd, are still within the constitutional
power of the legislature.. It will be for the
benefit of both the people and the legislature
to recognize this responsibility and to know
that they can not look to the Supreme Court
for relief in every case of an objectionable
but constitutional law. So long as the legis-
lature believed there was enough venereal
disease in this State to justify the enactment
of the statute in question, we can not gainsay
it, for that was a matter for the legislature
to decide. Assuming the prevalence of
venereal disease, its contagious nature, and
State Rights Re Limitation of Human Reproduction
345
its communicability by contact, it was within
the power of the legislature to enact statutes
wholly or partially preventive of the spread
of this disease. If the legislature libeled the
people of this State by making it to appear
that venereal diseases were prevalent here,
when in fact they were not, the members
of that body must for such error answer to
the electors and not to the Supreme Court.
If I concede, as I must, the power to require
a marriage license, I must also concede the
power to require of the licensee reasonable
qualifications, and it can not be said to be
unreasonable that he be free from venereal
disease.
"I can not imagine how this law can be
said to interfere with freedom of worship or
liberty of conscience. The notion that mar-
riage was a sacrament, not a civil contract
creating a status, once vigorously asserted,
has long since passed away. A point is made
that, requiring the prospective husband to
submit to the examination without making
the prospective wife do so, conflicts with the
Fourteenth Article of the United States
Constitution, which forbids the States to
deny the equal protection of the law. But
the men desiring to jnarry form a very
definite class quite germane to the object
soiight to be accomplished by the statute.
And we read in the learned medical treatises
that, while the primary source of venereal
infection is usually the prostitute, still such
diseases are generally brought into the family
by the husband rather than by the wife. The
legislature was justified in so deciding * * *.
"* * * I find no ground for holding that
part of the statute here involved unconsti-
tutional * * *."
This decision is upheld by Barnes, J., and
Timlin, J. (concurring). The dissenting
opinions are expressed by Marshall, J., and
Vinje, J.
The foregoing decision in reference to the
most recently adopted specific legal limita-
tions to marriage is a type of those involving
other fields of legal limitation which amply
sustain the power of the state to limit mar-
riage in the interests of the hereditary
physical, mental and moral endowment of
offspring, which may result from particular
contemplated marriage unions. In this par-
ticular Wisconsin case the extent and flexi-
bihty of the state's legislative authority is
exemplified by its power to apply the remedy
in hand to one sex only, if such limitation is
found desirable.
c. Judicial Annulment of Marriage in the
Interests of Public Health and Racial Wel-
fare.
In the matter of annulling marriages on
account of the development or discovery of
mental defect or transmissible disease in one
of the marriage mates, in states having no
specific statutes covering the matter the
courts have varied widely in sustaining or
annulling the legality of the marriage con-
tract, as the following recent court decisions
quoted from the United States Public Health
Reports' indicate:
cl. WISCONSIN SUPREME COURT,
Venereal Disease. Ground for Annul-
ment of Marriage.
C vs. C .
(Oct. 6, 1914.)
"One party to a marriage was infected
with gonorrhea at the time of the marriage.
Upon discovering this fact the other party
ceased marital relations. The court held
that the facts were sufficient to warrant the
annulment of the marriage.
"The plaintiff (the wife) sued for divorce.
The husband filed a counterclaim, asking
that the marriage be annulled.
"The court found from the evidence that
at the time of the marriage plaintiff knew
that she was infected with gonorrhea and
that she infected her husband. After his
infection the defendant severed marital rela-
tions with the plaintiff. The Circuit Court
entered judgment annulling the marriage.''
(148 Northwestern Reporter, 865.)
c3. NEW YORK SUPREME COURT,
SPECIAL TERM, NEW YORK
COUNTY.
Marriage — Tuberculosis — Annulment of
Marriage Because of Fraud in
Concealing Disease.
Sobol vs. Sobol
(Dec. 7, 1914.)
"It is proper for a court, in view of the
widespread prevalence of tuberculosis and
the disastrous consequences to those who
suffer from it, to take judicial notice of its
infectious character and the fact the close
association with a person afflicted with that
disease, unless attended with great care,
occasions danger of infection to those com-
ing into close contact with such person.
1 Cases 1 and 2 quoted from Reprint No. 342
from the Public Health Reports, pp. 69 and 70.
Cases 3 and 4 quoted from Reprint No. 410
from the Public Health Reports, pp. 69 and
71.
346
State Rights Rfi Limitation of Human Reproduction
"The fraudulent concealment of material
facts concerning the condition of his health
by one party to a marriage contract justifies
the legal annulment of the marriage at the
instance of the other party.
"The defendant knew before marriage that
he was suffering from tuberculosis. He con-
cealed this fact from the plaintiff, and repre-
sented that certain symptoms of the disease
were the result of a cold. Upon discovery
of the facts the plaintiff ceased, to cohabit
with him. No offspring resulted from the
marriage. The court annulled the marriage
on the ground of fraudulent concealment and
misrepresentation." (150 New York Sup-
plement, 248.)
c3. NEW JERSEY COURT OF
CHANCERY.
Marriage — Concealment by One Party of
Insanity in Family Not Ground for
Annulment.
Allen vs. Allen, 95 Atl. Rep., 363.
(Sept. 30, 1915.)
"In order to enable a court of equity to
annul a marriage on the ground of fraud
in concealing disease, the proof of the dis-
eased condition of the defendant must be
clear and convincing.
"A marriage can not be annulled by a
court of equity for fraudulent concealment
by one party of his or her physical condition
unless the disease is of such a nature as to
render contact seriously dangerous to the
other party.
"Plaintiff (the wife) asked the court to
annul the marriage on the ground that the
husband concealed from her the fact that
he was afflicted with a taint of hereditary
insanity. Some years after the marriage the
husband had become insane. The court re-
fused to annul the marriage because (1) It
was not clearly proved that the insanity was
hereditary; and (3) the concealment of in-
sanity in the family was not such a fraud as
would justify the court in annulling the mar-
riage."
c4. NEW JERSEY COURT OF
CHANCERY.
Venereal Disease — Annulment of Marriage —
Evidence Not Sufficient to Prove That
Defendant Knew That He Was Suf-
fering from Syphilis and Fraud-
ulently Concealed That
Fact.
Kaufman vs. Kaufman.
(April 1, 1916.)
"The fact that one party to a marriage
was afflicted with syphilis at the time of the
marriage is not sufficient to enable a court
to annul the marriage.
"Complainant sought to have her marriage
annulled on the ground that the defendant
(her husband) had fraudulently concealed
from her the fact that at the time of the
marriage he was suffering from syphilis. The
court decided that the evidence was not suffi-
cient to prove that the defendant knew when
the marriage occurred that he had syphilis
and that he had fraudulently concealed that
fact." (97 Atlantic Reporter, 490.)
2. Birth Control.
All laws of a state which concern sex-
morality have a bearing, either directly or
indirectly, upon human reproduction. There-
fore a consideration of the existing anti-birth
control laws, so-called, is pertinent.
It is conceivable that the term, birth-
control, might have developed a connotation
equivalent to eugenics, but as a matter of
fact as the term is used at present, birth-
control implies the limitation of the number
of offspring of a given mother. Primarily,
in accordance with the family's economic
status, that is, its ability to provide properly
for the rearing and training of all of its
children. The term implies, also, that this
end could be easily accomplished, if the
present laws limiting and denying the giving
and publication of information concerning
the use of mechanical appliances to prevent
conception were repealed. The contention is
made that, whereas the more favored eco-
nomic classes, through wider access to
medical literature and advice, have an easier
means of securing the desired information
and of procuring the mechanical contriv-
ances; but, on the other hand, the poorer
classes, not having such ready access to
physicians, medical supplies, and standard
medical literature, are, because of the laws
forbidding the dissemination of birth control
instruction and the sale of contraceptives,
denied equal opportunity. At present the
laws regulating the publication and dissemi-
nation of knowledge concerning contracep-
tion and controlling the distributipn and sale
of mechanical contrivances adapted to pre-
venting conception are inextricably woven
in with the laws against lewdness, obscenity,
criminal abortion, prostitution and fornica-
tion, which laws have for their prime motives
the prevention of sex-immorality.
State Rights Re Limitation op Human Reproduction
347
According to a recent school of advocates
of birth control a clean cut separation should
be made between birth control and sex-
immorality, and in consequence the dissemi-
nation of instruction in birth control methods,
and the manufacture, distribution and sale
of mechanical contraceptives be made free
from criminal liability. Their opponents
oppose this proposal, contending that the
present laws are based upon the proper
foundation, and that birth control teaching
and appliances should continue to be classed
legally with criminal abortion and obscenity.
a. Review of Criminal Statutes on Birth
Control^. Judge J. C. Ruppenthal:
"In the United States, laws relating to birth
control seem to have been developed since
about 1870. Congress, the legislatures of nine-
teen states and Porto Rico, and the commis-
sion of the Canal Zone, have enacted statutes
that clearly and definitely refer " to the pre-
vention of conception in women as a practice
to be declared a crime by such laws. In
Canada, at least Ontario has such a law.
Twenty-two more states of the Union, and
also Hawaii have statutes which the courts,
with liberality of construction or strictness,
hold to apply or not apply criminally to the
matter of birth control, at least through pre-
vention of conception, or "contraception." The
District of Columbia, and the states of Rhode
Island and Florida have kindred enactments,
relating in the states to causing miscarriage
of a pregnant woman, and in the District to
abortion. Four states, Georgia, New Hamp-
shire, New Mexico, and North Carolina, and
also Alaska, appear to have no legislation that
either certainly or possibly may be held to
apply to birth control. All the forty-nine sets
of enactments referred to are found in the
statute backs under "obscenity" and "offenses
against morals," as headings. In most cases
the_ phraseology relating to contraception is
found embedded among many clauses relating
to pornographic or non-mailable matter, to in-
decent and Immoral, printing, writing, paint-
ing and the like. Colorado, Indiana and "Wyo-
ming mention "self-pollution," and Massachu-
setts names "self-abuse" along with abortion
and prevention of conception.
"Clear and definite laws on contraception
are found on the statute books of the states
of Arizona, California, Colorado, Connecticut,
Idaho, Indiana, Iowa, Kansas, Massachusetts,
Minnesota, Montana, New Jersey, New York,
North Dakota, Ohio, Oklahoma, Washington
and Wyoming' — eighteen — as well as Porto
Rico, Ontario, the Canal Zone and the United
States. The federal laws are quite full in ex-
pression, and perhaps served as model for
most of the states.
"If a court regards written matter relating
to contraception or means to accomplish this,
as "obscene, vulgar and indecent," then laws
apply also in the states of Alabama, Arkan-
sas, Delaware, Hawaii, Illinois, Kentucky,
Louisiana, Maine, Maryland, Michigan, Missis-
sippi, Missouri, Nebraska, Pennsylvania, Ne-
vada, Oregon, South Carolina, South Dakota,
Tennessee, Texas, Utah, Vermont, Virginia,
West Virginia and Wisconsin — twenty-five in
number. In some states a limitation as "if
they manifest a tendency to corrupt the
morals of youth," or morals generally.
" 'Articles and instruments of immoral use
or purpose" are denounced, but no specific
purpose or object of such is set out, in the
laws of Connecticut, Illinois, Kentucky, Louisi-
ana. Michigan, Mississippi, Missouri, Nebraska,
Oregon, Pennsylvania, Rhode Island and Utah.
In Maryland 'obscene and indecent' books are
mentioned, and 'obscene' matters in South
Carolina, with no more specific designation.
In Ontario the law very widely includes the
assertion or warranty of the offender, as the
language is 'any article intended or represent-
ed as a means of preventing conception or
causing abortion.' To make prosecutions more
easy, Idaho provides that the complaint need
not set out any portion of the language al-
leged to have been unlawfully used. To aid
in capture of contraband articles, instruments
and literature or other things, search warrants
or seizure, or both, are authorized in Arizona,
California, Colorado, Idaho and Nevada.
"Where advice or information as to abor-
tion is forbidden, though some states, as Min-
nesota and New York, carefully discriminate
against 'unlawful abortion,' others, as Kansas
and Iowa, say, 'procuring abortion,' with no
intimation that such could, in any case, be
lawful. Kansas, however, in another statute —
as to manslaughter of a woman pregnant or
her child — excepts 'when i,t shall be neces-
sary to save the life of the mother,' and thus
inferentially distinguishes acts of two classes.
"While some statutes are word for word
alike in several states, most of them vary In
scope. Among the forbidden acts,. In connec-
tion with articles, instruments, books, papers,
etc., are to 'exhibit' (United States law and
Colorado); 'bring into the state' (Alabama);
'import' (Hawaii); 'buy,' 'sell,' 'lend,' 'keep
for sale,' 'have in possession,' (Iowa) ; 'have in
possession with intent to sell,' 'have posses-
sion with or without intent to sell' (Indiana);
'advertise,' 'distribute' (New York); 'manufac-
ture (Missouri and New York); 'has posses-
sion with intent to utter or express to view
or to sell,' 'for gratuitous distribution' (in
Ohio, drug or nostrum; in Kansas, literature)
'conveying notice, hint or reference to,' unde:
'real or fictitious name', (Rhode Island); 'givt
information orally' (New York, Minnesota, In-
diana) ; 'write, compose, or publish' (notice oi
advertisement, in Arizona) ; 'manifesting a
tendency to the corruption of the morals of
youth or of morals generally,' (Hawaii); 'cau-
tions females against its use when in preg-
1 Criminal Statutes on Birth Control: J. C.
Ruppenthal, Judge of the Twenty-third Judi-
cial District of Kapsas; Judge Advocate U. S.
Army. Journal of Crim. Law and Criminol-
ogy, May, 1919, pp. 48-50.
See also: Abstract of the Criminal
Laws of the U. S., the Several States thereof,
and Canada, Relating to Birth Control. J. C.
Ruppenthal, Jour. Crim. Law and Criminology,
May, 1919, pp. 51-61.
348
State Rights Re Limitation of Human Reproduction
nancy' (Ohio) ; 'drug or nostrum purporting to
be exclusively for the use of females' (Ohio).
To meet the ingenuity of evasive devices, New
Jersey includes all persons 'who shall in any
manner, by recommendation against its use
or otherwise give or cause to be given, or aid
in giving any information, how or where any
of the (literature, instruments, medicines, etc.)
may be had or seen or bought or sold.' What-
ever is prohibited directly to anyone is usually
expanded in terms to include aiding in any
way toward the forbidden end.
"A few exceptions from the sweeping provi-
sions are incorporated. In Ontario the of-
fense must be 'knowingly, without lawful ex-
cuse or justification;' in New Jersey, 'without
,iust cause.' In some states the law provides
that it 'shall not be construed to aftect teach-
ing in medical colleges' (Colorado, Indiana,
Ohio); 'nor standard medical books' (Colorado,
Indiana, Kansas, Ohio) ; 'nor the practice of
regular practitioners of medicine and drug-
gists (Colorado) in their legitimate business'
(Ohio); 'nor works of scientific character, or
on anatomy, surgery or obstetrics" (Ken-
tucky) ; 'article or instrument used or applied
by physicians is not . .. . indecent.' In Con-
necticut possession of the things forbidden is
unlawful 'unless with intent to aid in their
suppression or in enforcing the provisions' of
the law.
"Almost everything denounced under any
of these laws Is non-mailable under the laws
of the United States, Colorado, Illinois, Indi-
ana, Iowa, Missouri, Nebraska, Ohio and New
York. Delivery of such to express or rail-
road companies is forbidden by the United
States, Illinois, Indiana, and New York. Be-
sides forbidding the deposit of such matters
in the mails, Colorado adds 'or with any per-
son.'
"Prom the foregoing It may be seen that no
general principle runs through the statutes of
all the states, etc. As with laws everywhere
that impinge upon sex matters In any way,
there is more of tabu and superstition in the
choice and chance, the selection and caprice,
the inclusions and exclusions of these several
enactments than any clear, broad, well-de-
fined principle or purpose underlying them.
Without such principle, well-defined and gen-
erally accepted, the various laws must remain
largely haphazard and capricious."
b. Conclusions.
The dissemination of birth control, so
called, instruction, and manufacture, distri-
bution and sale of mechanical contraceptives
is in most states prohibited by laws socking
to prevent sex-immorality.
The present anti-birth control criminal
laws, which exist in nearly all of the states,
are entirely prohibitive or restrictive, and
consequently may have worked out in favor
of a higher birth rate.
All good citizens must approve laws which
promote public and personal morality and
which forbid and destroy obscenity and
prostitution, but the present anti-birth control
laws, so-called, do not appear to be well
designed to accomplish their desired ends.
As a remedy for over-population, which is
probably one of the several great causes of
modern war, birth control might be efiective
by decreasing the numbers of citizens in par-
ticular nations, but unless such reduction
took place where the population pressure was
greatest, it would not operate in the desired
manner. Moreover, its operation in prevent-
ing war would be eugenically equivalent to
preventing war by reducing the population
of a nation by famine, or pestilence, which
strike down individuals and remove them
from parenthood, on a basis, for the most
part, indifferent to hereditary worth. Over-
population presents a field for eugenical ac-
tivity, which calls for building the next
generation in numbers equal to the optimum
quantitative demand of the nation, and in
quality descended from the best blood.
Eugenicists criticise birth control, so-
called, because of its shortsightedness in
favoring birth restriction principally on an
economic basis. Birth control becomes then,
in a sense, an anti-baby strike. Whereas
eugenics favors the restriction of reproduc-
tion by the hereditarily less able mental,
moral and physical parents, but demands a
higher birth rate by those parents possessing
the soundest hereditary traits. Thus eugen-
ics makes good blood the primary, and
present economic status a secondary consid-
eration, because there is no constant and high
correlation between economic status and
hereditary worth.
From the analysis of the legal situation it
is apparent that a state, in the exercise of its
undoubted police authority, may enact stat-
utes in reference to birth control information
and appliances, and sex-immorality, which
statutes influence very greatly the quality and
quantity of human reproduction. In the
enactment of such laws, however, the state
should take care not to substitute the crite-
rion of economic condition in place of that
of inborn physical, mental and moral quality,
in encouraging and limiting birth rate.
It is doubtful whether the court interpre-
tation of any existing laws would prevent
reputable physicians from advising their pa-
tients in reference to means of preventing
conception, or a standard medical work from
publishing facts in reference to the matter.
But when birth control ,is talked and prac-
ticed in the spirit of obscenity and lewdness,
State Rights Rd Limitation of Human Reproduction
349
the law would be expected to restrain its
perverters.
The legislative and legal world is in need
of a new set of guiding principles which shall
determine the policy of the state in suppress-
ing obscenity and in regulating birth control
information and practice in their relation to
the immediate public health and morality and
to racial welfare, because the present prin-
ciples and activities are not duly co-ordinated
in the interests of the general welfare.
3. Control of Immigtration.' The control
of immigration is a matter of the greatest
eugenical import, because whenever two
races have lived for long periods of time m
the same geographical range of personal
acquaintances and contact, racial fusion to
some extent has resulted. Therefore the
laws controlling immigration have indirectly,
and often remotely in time, but nevertheless
very definitely a strong governing influence
upon the quality of human reproduction.
In the United States the authority to
control immigration is vested by the Consti-
tution in the Federal government. For the
most part present social and economic mo-
tives have guided our immigration statutes,
but it is undeniably within the power of the
Federal government to deny admission to
immigrants on the basis of cacogenesis, that
is the possession of degenerate or undesirable
personal hereditary traits. At present be-
sides limiting immigration annually to 3 per
cent of the foreign-born of the United
, States as shown by the Census of 1910,
distributed among the several nations ac-
cording to their respective quotas, ad-
mission is denied certain members of the
dependent and defective classes, but the
denial of admission is limited to individuals
personally defective or degenerates. The
matter of pedigree, or blood, which deter-
mines the quality of their ofifspring, has not
yet been made a matter of serious legislative
concern.
It is clear that the eugenical principle
applied to immigration control would, in
substance, read as follows:
Admission as immigrants shall be denied-
sexually fertile foreigners who, regardless of
their personal social adequacy, cannot estab-
lish to the satisfaction of definitely estab-
lished tests and standards, that In each case
the would-be immigrant is equal in the natural
worth of his or her hereditary mental, physi-
cal and temperamental traits, to the stand-
ard which the American people are willing to
constitute a considerable portion of its fu-
ture population.
But before such a rule can be enforced,
the science of human heredity must make
more progress, and above all, must lay down
and demonstrate the validity of specific rules
for determining breeding quality. Obviously
the task of determination in a specific case
involves family history study, and is conse-
quently expensive, for such study must be
carried out in the home territory of the
subject. At first statutes providing for such
determinations would, of necessity, have to
be experimental, and would apply only to the
most patent and easily demonstrated cases;
later, as the science of pedigree-study pro-
gressed, and the administrative arm of the
law became more effective, the statute could
be drawn more rigidly.
At present both the United States and
many of the several states have laws provid-
ing for the deportation of certain individuals
who are, or who within a definite period of
time following admission become, defective
in personality, and who consequently are
thrown upon public charity for their mainte-
nance. Many people of this sort, despite the
immigration and quarantine restrictions, find
their way past the Federal immigration offi-
cials, and settle in different states. The nation
deports such persons to the country of
origin, while the state may deport only to
the state of origin. The present restriction
of the migration of degenerates, and . the
possible future restriction of the immigration
of cacogenical persons, tend to throw upon
the communities which permit the reproduc-
tion of such anti-social persons the responsi-
bility for their care, and thus ultimately is
logically to be expected to cause the particu-
lar community to seek a more efficient solu-
1 See Annual Report of the Commissioner-
General of Immigration for year ending June
30, 1919, which gives the iminigration data for
the first hundred years (1819-1919), during
which the United States has kept immigration
statistics. Govt. Print. Off.
Also Annual Report of the Commissioner
General of Immigration for year ending June
30, 1921: "The Percentum Limit Act" of May
19, 1921, entitled "An Act to limit the immi-
gration of aliens into the United States" as
extended by Public Resolution No. 55, 67th
Congress, approved May 11, 1922.
Senate Reports of the Immigration Commis-
sion, presented by Mr. Dillingham, Vols. 1 to
41 (1911). Govt. Print. Off.
The Immigration Problem: Jenks & Lauck,
Funk & Wagnalls Co., 1917.
Immigration Laws (Act of Feb. 5, 1917) and
Rules of May 1, 1917. (Third Edition, March,
1919.) Govt. Print. Off.
Treaty, Laws and Rules Governing Admis-
sion of Chinese — Rules of May 1, 1917.
(Second li'ditlon, N.-)V., 1917.) Govt. Print. Off.
350
State Rights Rt Limitation of Human Reproduction
tion of its handicap by forbidding certain
degenerates to reproduce.
Thus the immigration policy of a nation
is inextricably tied up with its eugenical
problems, but fortunately no one denies the
right of a sovereign nation to control by law
and treaty its own emigration and immigra-
tion policy.
4. Institutional Segregation of Social
Inadequates.
The state may seek out and segregate' in
custodial institutions those individuals of its
population who are temporarily or perma-
nently socially inadequate.
But the state finds that the control of the
reproduction of certain types of degenerates
cannot be effected solely through the control
of the marriage relation, because many of the
degenerates of the state are not amenable to
law — that is, they are anti-social, the mar-
riage laws do not govern their reproduction,
hence illegitimacy runs high among them.
In such cases the only practicable means of
preventing their reproduction is through
segregating them in custodial institutions
during the reproductive period, or if they
remain at large, subjecting them to eugenical
sterilization so that they shall not be
physiologically able to reproduce. Both
segregation and eugenical sterilization in-
volve the taking away of the personal liberty
without the element of punishment, but
liberty is nevertheless taken away, just as
completely as is done in the case of a crim-
inal who breaks the criminal law and who,
by due process of law, is sent to prison.
Both in commitment and sterilization the
principal motive is the protection of society,
the secondary motive the protection of the
particular individual. This latter motive is
doubtless stronger in commitment than in
sterilization. There must, of course, in com-
pulsory vaccination, in quarantine, and in
commitment to custodial institutions, as well
as in imprisonment for crime, be due process
of law. But due process of law in the case
of crime always implies court procedure,
which in turn implies the right to be heard
and the assurance of judgment in accordance
with the law and the evidence, whereas in
case crime is not involved, but a medical or
psychiatric or eugenical situation is found,
the state may provide due process of law in
another manner. It may delegate the en-
forcement of the non-punitive types of taking
away personal liberty in the interests qf'the
public welfare to ministerial or administra-
tive bodies or officers, who are authorized
to use their own discretion in each particular
case. Such laws, of course, cannot prevent
recourse to the courts in case of abuse of
power. In the case of these social and thera-
peutic remedies involving the limitation of
personal liberty, the public will co-operate in
due proportion to the exigencies of the case
and to its enlightenment and patriotism.
Thus, in many states, for most of these proc-
esses— vaccination, quarantine, commitment
to custodial institutions, and eugenical steril-
ization— the co-operation of the families con-
cerned has been so great that the enforce-
ment of the law has been greatly supported
by the voluntary element on the part of the
persons directly affected. If in each case the
individual resisted as in the case of punish-
ment for crime, these social, therapeutic and
eugenical remedies would' not have such a
bright outlook, nor would their present effec-
tiveness be very great.
a. Quotation from Dr. Henry M. Hurd.
Dr. Hurd says,'' in reference to due process
of law in commitment of the insane (Vol. 1,
pp. 335-6):
"Many persons have contended that unless
the insane are committed by jury trial, they
are restrained of their liberty 'without due
process of law,' but it has been clearly
pointed out by Ordronauz and others that
'due process of law' means the law of the
land, so that any law which is properly placed
upon the statutes must be considered 'due
process of law.'
"In examining the laws of commitment
and the procedures under them, I find that
in five states of the Union, viz., Colorado,
Kentucky, Mississippi, Texas and Wyoming,
it is imperative that the commitment of pa-
tients shall be after a verdict by a jury.
"In four others, viz., Alabama, Massachu-
.sclls, Missouri and Wisconsin, a jury is not
' Soo Summnrles of State Laws Relating to
the Insane; Keren. Hamilton & Haber, 1917.
Summaries of State Laws Relating to the
Foelile-mlnded and Bplleptlc: Hamilton &
Habor, 1917. Both works published by the Na-
tional Committee for Mental Hygiene, N. T.
Summary of State Laws Relating to De-
pendent Classes: 1913. U. S. Bureau of Cen-
.sus.
Statistical Directory of State Institutions
for Defective, Dependent and Delinquent
Classes: H. H. Laughlin, 1919. U. S. Bureau
of Census.
Annual Census of the Insane, Feeble-minded,
Epileptics and Inebriates In Institutions In the
U S.: January 1, 1918. H. M. Pollook, Edith
M'. Purbush. The National Committee for
Mental Hygiene, N. Y.
" The Institutional Care of the Insane in the
United States and Canada. Four Volumes.
Johns Hopkins Press, 1916.
State Rights Re Limitation of Human Reproduction
351
imperative, but may be impaneled at the dis-
cretion of the court. In five states, viz.,
Georgia, Kansas, Maryland, Michigan and
Washington, a jury must be impaneled when
demanded by the patient or his counsel.
"In one state, Illinois, a jury or a commis-
sion must determine the question of insanity
and the presence of the insane person in
court is at the discretion of the judge.
"In several states, when an appeal is taken
from the decision of the judge of probate
that a person is insane, the appeal must be
tried before a jury.
"In ten states, viz., Iowa, Kansas, Louisi-
ana, Minnesota, Nebraska, North Dakota,
Oklahoma, Pennsylvania, South Dakota and
Virginia, the question of insanity is deter-
mined by a commission — usually a county
commission.
"In twenty-four states, viz., Arizona,
Arkansas, California, Connecticut, Delaware,
District of Columbia, Florida, Idaho, Indi-
ana, Maine, Nevada, New Hampshire, New
Jersey, New Mexico, New York, North Caro-
lina, Ohio, Oregon, Rhode Island, South
Carolina, Tennessee, Utah, Vermont and
West Virginia, no mention of a jury is made
in the law.''
In the same work (p. 344) in reference to
the voluntary admission of patients we read:
"No section of any law seems more vague
and lacking in uniformity than that govern-
ing the admission of voluntary patients to
institutions for the insane, as now found in
the statutes of the various states.
"Out of the 48 states and the District of
Columbia, the following 17 states and the
District of Columbia already have provisions
of law permitting' the admission of voluntary
patients, viz., California, Colorado, Connecti-
cut, District of Columbia, Illinois, Maryland,
Massachusetts, Michigan, Minnesota, New
Jersey, New York, North Carolina, Ohio,
Pennsylvania, Rhode Island, Vermont-. Wis-
consin and Virginia."
b. Conclusion.
The state undoubtedly possesses the legal
right to enact statutes which provide for the
punitive imprisonment of persons convicted
of crime, and also the involuntary non-puni-
tive commitment and custody of persons who
because of their social inadequacy are unable
properly to care for themselves, or are a
public menace. The effective institutional
custody of a person prevents, of course,
parenthood during the period of commit-
ment, and to such an extent the state thus
exercises, indirectly but surely, a limited legal
control over human reproduction.
5. Eugenical Sterilization.
Regardless of the virtues and defects of
the eugenical sterilization statutes already
enacted, and in the absence of specific consti-
tutional denial, legal opinion and judicial de-
cision support the power of a state to resort
to compulsory eugenical sterilization, if it
so chooses and expresses its choice in well-
drawn statutes. Neither analysis nor abstract
of the evidence supporting this statement will
be given here, because this special phase of
the subject was extensively treated in the
accompanying chapters.'
a. Cases of Eugenical Sterilisation in States
Having Neither Authorizing nor Restraining
Statutes.
There have been a number of instances in
which sexual sterilization has been put into
effect for purely eugenical reasons. As a
rule, this has been accomplished on the re-
sponsibility of a physician, or by the sugges-
tion or at least with the co-operation of the
family of the individual sterilized, or in some
cases by the action of a court of law. It
appears that in 1893 Dr. F. E. Daniel,° of
Texas, was one of the earliest of the recent
eugenicists to propose sexual sterilization for
the purpose of race improvement. Beginning
in 1898, Dr. F. Hoyt Pilcher, of the Institu-
tion for Feeble-minded Children at Winfield,
Kansas, performed a number of operations
(58 boys castrated) for avowed eugenical
purposes. This aroused considerable oppo-
sition, but also brought support to his pro-
gram. Indeed his trustees, by resolution,
formally upheld his work in seeking in this
manner to purge the race of certain defective
strains.
Dr. Martin W. Barr, Superintendent of the
Pennsylvania Training School for Feeble-
minded, at Elwyn, Pa., and Dr. Everett
Flood, Superintendent of the Monson State
Hospital for Epileptics at Palmer, Mass., also
were early advocates and testers of eugenical
1 Chapter VI. Analytical Outline of Litiga-
tion Growing Out of the Several Sterilization
Statutes.
Chapter VII. Detailed Review of Litigation
Growing Out of the Several Sterilization Stat-
utes.
Chapter IX. Legal Opinion.
2 F. B. Daniel, Pros. State Med. Association
of Tex, "Should Insane Criminals or Sexual
Perverts Be Allowed to Procreate?" Medico-
legal Journal, Dec, 1893; id., "The Cause and
Prevention of Rape." Texas Medical Journal,
May, 1904.
352
Statb Rights Rh; Limitation of Human Reproduction
sterilization. In 1899 Dr. H. C. Sharp, sur-
geon of the Reformatory at Jeflfersonville,
Indiana, began the operation of vasectomy
for purely eugenical purposes. He continued
these operations for at least eight years
before they were legalized (1907) in Indiana.
In the Cantonal Asylum at Wil,' Switzerland,
with the consent of the civil authorities, two
men and two women were sterilized for
purely eugenical purposes. There are doubt-
less many other instances not here recorded,
in which the eugenical principle has either
operated independently or has been joined
with the therapeutic purpose in determining
upon operations which have resulted in
sexual sterilization. With the rise of modern
studies in human heredity, the possibility of
using this remedy for preventing the pro-
creation of certain degenerates has made
substantial progress.
The fact that cases of eugenical steriliza-
tion have been performed without the sanc-
tion of the law, and that no legal recourse
was had, nor even desired, nor most prob-
ably was possible, points the way for ener-
getic administrative and judicial officers to
advance eugenical measures. But a measure
so wrought with possibilities for good or for
evil and so liable to be perverted in arbitrary,
unskillful or designing hands, should be di-
rected and limited by law. It is, however, a
wise law that encourages the co-operation
of the person designated for eugenical steril-
ization, and of his or her family in carrying
out a legally arrived at decision to sterilize.
A review of two actual cases of eugenical
sterilization in states having no statute on the
subject follows:
al. The Case of M H of
Massachusetts.
This case was reported by Dr. Henry P.
Frost, Superintendent of the Boston State
Hospital for the Insane.
In filing this report Doctor Frost writes:
"* * * I am sending you an abstract of one
of my cases, a man on whom wc recently
performed vasectomy in the interest of
eugenics — a very feeble step in what you and
I agree is the right direction * * *."
BRIEF OF VASECTOMY CASE.
M H was admitted to the
Psychopathic Ward for observation Novem-
ber 13, 1911 (Psyco. No. 546). He was dis-
charged from there and committed to the
Boston State Hospital, November 14, 1911.
(Case No. 10302.)
Family History: Shows no history of in-
sanity or alcoholism.
Personal History: Age at admission 42
years. Went to school in Ireland from 6 to
14 years of age, said that all the schoolmas-
ters in Ireland could not put anything into
his head. Was in a hospital for insane in
Ireland about 17 years ago, for about 18
months. Came to this country at the age of
34, and married two years later. Is of good
habits; a steady worker.
Present Attack: Wife says he has always
been as well as at present time, and she
considers him in his normal condition. On
Sunday while wife was in labor she noticed
that he was not right, he sang religious
songs, prayed, etc. Exciting cause — preg-
nancy of wife, who was alone in the house.
The patient was alone with wife when babies
were born.
Summary of Physical Examination: Tall,
middle aged, white, male, emaciated, poorly
developed, speech defect, pupils irregular, do
not react to light, eyeball prominent apd
protruding.
Summary of Mental Condition on Admis-
sion: Was excited, disturbed, restless, re-
sistive and noisy; religious and exhilarated;
appeared confused. Showed loquaciousness
and distractability. Orientation and memory
unimpaired. Insight, negative. Hears the
voice of God and has religious delusions
based upon this hallucination which he has
had for thirty years. Venereal history, nega-
tive. Probably no excessive use of alcohol.
» Sixteenth Annual Report. 1907 (See also
"Sterilization of Unfit" by Havelock Ellis,
Eugenics Review, 1909-10. Vol. I, page 203.)
In Switzerland, Swiss Cantonal Asylum at
Wil (Berne), there were 4 Inmates — 2 men,
2 women — mentally abnormal though not In-
sane, and medical authorities wished to dis-
charge them.
(1) Woman, 25 years, epileptic, liable to
attacks of Insanity. She had had two children
who were epileptic Idiots and a charge on
community. She was strong and anxious to
work.
(2) Woman, 36 years, weak-minded with
occasional attacks excitement. She had had
two Illegitimate children, who were charge on
community. She was skillful worker.
(3) Man, 31 years, physioally well built,
psychically a degenerate and frequently com-
ing into conflict with the law.
(4) Man, 32 years, mentally superior but
sex pervert, held for offenses against minors.
Sex inclination strong, all four.
Municipal authorities opposed to their lit>er-
atlon; four children already had to be provided
for; if liberation took place the number could
not fail to be increased.
Deadlock! Sterilization by castration the
solution eagerly accepted by all. Operated and
set at large.
(1) Has been at work ever since and ex-
presses herself as content with her condition.
(2) Able to earn her own living.
(3) Still commits thefts at times but has
not been guilty of any sex offenses.
(4) 3ame condition as No. 3.
State Rights Rk Limitation of Human Reproduction
353
as
u
OS
(»
C3
O
a
J3
T3
0)
Oh
(0 4.
a
CD
^.1
^ 1^
>5
'Si
o
I
■r
I
-0:m
■©
N
B -
§ ^
S R. !^
-©
■D*
-n ^
^
-o '^
-e
>5
5^
'4
>3
to
I
si
•*^
M
354
State Rights Re Limitation of Human Reproduction
While here he gradually became quiet
and tractable and talked relevantly. Was
evasive about delusions but probably less
prominent than before. Ate and slept well.
Conduct and behavior good.
January 22, i<)i2. Was presented at the
staff meeting for diagnosis and discharge.
It was found that he retains the delusions
although he is very quiet and has nothing to
say about them. The consensus of opinion
was that he belonged in the Allied to Manic
Depressive classification, and that he prob-
ably has never recovered since his early at-
tack 17 years ago; that he is* rather below
the average naturally. As to his condition
if allowed to go home, he would be dis-
charged capable of self-support, as he has
been self-supporting nearly all his life. The
obstacle to his going is the question of an
insane man and a defective woman propagat-
ing children and raising a family. No deci-
sion was arrived at as to his discharge, but
the matter was referred to the social service
worker to investigate home conditions and
report.
Social Service Report in Brief: Investi-
gation showed: —
Wife of the patient to be of decidedly in-
ferior make-up, but fond of her children and
a good mother, keeping them and the house
in a clean, orderly condition. Said that they
had all the children they could provide for,
that she did not want any more, but realized
that there would probably be more.
Family History:
Pedigree Chart of H. Family of Mass.
(See Chart on preceding page.)
Children:
First, a girl, 11 years of age. Defective,
manner silly and nervous. Has been to
school for four years and is now in the
first grade.
Second, a girl, 8 years of age. Case of re-
tarded development recommended for Wa-
verly. Appearance of feebleminded child.
Now in kindergarten. At times has boon
untidy in habits.
Third, a boy, 4 years of age. Of normal
mental and physical activity.
Fourth, a girl, 2 years of age. Does not
walk or talk yet. Of anaemic appearance.
Fifth and Sixth, twins born just before
patient's admission. One died at birth. The
other, sickly, died recently.
Three others have died in infancy.
Sources of Family Income:
Patient has been receiving $10 per week
for low grade work in a shipping department.
Was said to be a steady but not a very in-
telligent worker. Employers said that he
could probably obtain his old position on
discharge from the hospital. Mother's en-
tire time taken up with care of children.
During patient's residence at the hospital,
the family was receiving aid from the church,
the city and the Associated Charities. Rela-
tives would not help. It was questionable as
to how long outside help would be continued.
Summary of Report:
Mother — inferior, but a good provider and
home maker.
Father — insane, but harmless and capable
of providing for the family. His wife be-
came pregnant before marriage and they
were married in the police station.
Children — two or three defective, one nor-
mal.
Subsequently to Report: It was suggest-
ed that the patient be sterilized before allow-
ing him to go home, and the matter was
proposed to him, also the Physician, Dr.
Wornell (city doctor in district of patient's
■home). The patient did not take kindly to
the suggestion, but the doctor thought it
would be an excellent idea and agreed to
consult with Mrs. H. and advise her, if pos-
sible, to persuade Mr. H. that it would be
the best solution in the case.
About April 9 the patient was visited by
wife, and together they consented to vasec-
tomy.
Vasectomy was performed April 18.
The patient went home on trial visit April
28, 1912.
a2. The Case of X, of Illinois.
Another example of eugenical sterilization
brought about through the intervention of a
State official, this time a judge of a criminal
court in a state in which there is no law-
cither directing, authorizing, forbidding or
controlling eugenical sterilization, is report-
ed in The Survey (Oct. 28, 1916, p. 78) as
follows:
"SENTENCED TO PRISON OR
STERILIZATION.
"One of the most respected and experi-
enced judges in the criminal court at Chi-
cago'set a precedent, which is said to be the
first of its kind, in giving a prisoner the
choice between going to prison for a criirlc
of which he was convicted by a jury or of
submitting to sterilization. In offering this
alternative from the bench. Judge Marcus
State Rights Re Limitation of Human Reproduction
355
A. Kavanaugh said to the prisoner, sixty-
five years of age and a married man with
children:
" 'If I sent you to the penitentiary it
means death to you in your present health.
At the same time I dare not turn you loose
upon the public, for fear this mania with
which you seem to be affected may cause
you to attempt a similar crime, and then I
would be at fault. If you will submit to an
operation, with the choice of the best sur-
geons by next Saturday, I will set aside your
sentence. I cannot compel you to submit
and you v/ill have a week to think the matter
over. If you decide to do this, it will mean
that you do not have to begin your sentence
of from one to twenty years in the peni-
tentiary.'
"The prisoner subsequently decided to be
sterilized.
"In commenting on the case the judge
said he presumed he would be criticized for
his proposition to the prisoner, but he wished
neither to commit him to what really would
be a death sentence, nor to expose the pub-
lic to a repetition of his heinous offenses
against little girls.
" 'One of my reasons for rendering the
decision,' he added, 'was to draw public
attention to a situation which has been dis-
regarded too long. I believe all morons, the
criminal insane and habitual criminals, both
men and women, should be so treated. To
my mind it is a crime against society that
this class should be permitted to propagate
their kind. As for those who commit out-
rages against women and female children,
I advocate even more drastic measures,
which would make repetition of the acts
impossible. It is my hope that public interest
may be aroused.' "
Under date of June 8, 1918, in response
to an inquiry on the part of the Eugenics
Record Office, Judge Kavanaugh, responded:
"The case happened over a year ago. The
prisoner consented to the operation. It may
be that the result was purely psychological,
but at any rate it has effected an entire
change for the better in his disposition,
which after all I think is preferable to sen-
tencing him to the penitentiary. If he had
gone to prison he probably would have been
released by this time and returned to ab-
solute freedom with his evil disposition
intensified. While this alternative ought not
be offered in every case, still I think that
a major operation should accompany every
imprisonment of men who commit outrages
upon women or children."
b. The Legal Situation in England.
-No one doubts the legality of the power
of the British Parliament to enact a statute
regulating the use of compulsory eugenical
sterilization, and for forbidding the illegal
or immoral use of the operation. In the
absence of such statutes, the legality of eu-
genical sterlization would probably depend
upon the powers and customs of the Lunacy
Commissioners, as supported by their re-
spective County Councils, the volunteer ele-
ment in securing the cooperation of those
to be operated upon, and existing laws gov
erning ordinary surgical operations.
Dr. R. R. Rentoul \ of Liverpool, who
has made a survey of the eugenical steriliza-
tion problem in Great Britain, says:
"bl. Would it he Lawful to Sterilize? This
question can best be answered by referring
to precedents, etc. As our references refer
chiefly to "castration," they may be taken
to illustrate the law and custom as it would
now bear upon a much less serious operatior
— namely, dividing and ligaturing either the
vasa deferentia, spermatic cords, or fallopiar
tubes.
"I have elsewhere referred to the making
of eunuchs in Old and New Testament
times, and to the action of Mohammedan
countries; to the legality of our present
custom of castrating thousands of animals
in the United Kingdom, and to ordinary
surgical operations upon the ovaries and
testes.
"With reference to the bearing of the Eng-
lish law upon the subject of surgical opera-
tions generallj', the law provides that nc
surgeon is empowered by law to perforrr
any surgical operation upon any person
Every operation is legally an assault, and
consequently the consent of the patient, or
the relatives, or the guardian is secured be-
fore operating. The law does not even em-
power any surgeon t6 kill the child in the
womb with the view of saving the life of
the pregnant woman. Sir J. F. Stephen, in
his Digest of the Criminal Law, Arts. 204
205 and 206, says that every person has the
right to consent to a surgical operation upon
himself, or upon his child; that if the person
is incapable of giving consent to a surgical
operation, it is not a crime to operate with-
1 Race Culture or Race Suicide: Robert
Reid Rentoul, M. D. The Walter Scott Pub-
lishing Co., Ltd., 1906. pp. 146-148.
356
Static Rights Re IvImitation of Human Reproduction
out consent; that every person has a right
to consent to the infliction of bodily harm,
not amounting to a maim. He states that
castration is a "maim." It follows, I think,
that all operations when necessary to the
saving of life, or in the improving of the
person's health, is a justifiable "maim." Fur-
ther, I would contend that sterilizing a person
so as to save him begetting mental degen-
erates is a necessary, and therefore, a law-
ful operation.
"b3. Who Should Operate? No person
should perform the operation of sterilization
for the purpose of preventing the begetting
of degenerates, without the official permis-
sion of the Lunacy Commissioners of Eng-
land, Scotland, or Ireland; and the Com-
missioners should inquire into the history
of the person to be operated upon, and take
any other step they consider necessary. No
person should operate except those specially
appointed by the Commissioners. The re-
sult of each operation should be communi-
cated to the Commissioners by the person
who operated. A report containing full and
complete details should be laid annually be-
fore both Houses of Parliament. If the
Lunacy Commissioners refuse to act, then
each County Council, through its Asylum
Committee, should sanction the operation.
"b3. Penalties for Wrongfully Operating,
etc. If any person sterilize any person for
the purpose of the prevention of the beget-
ting (or the conceiving) of offspring, with-
out the consent of the Lunacy Commission-
ers; or if any person operate for any im-
moral or unlawful purpose; or if any person
issue a permit to marry, or join in marriage,
or marry any sterilized person without first
notifying the fact of sterilization to the non-
sterilized person, a penalty of fifteen years'
penal servitude should follow conviction in
a Court of Law. If a sane husband or sane
wife, or the sane man and woman about to
become husband and wife, wish to be ster-
ilized, such persons must first obtain the
consent of the Lunacy Commissioners."
c. Conclusion: Not only may a state enact
statutes authorizing and regulating eugeni-
cal sterilization, but in the absence o^ such
statutes, the courts of law and the custodial
institutions, by securing the consent of the
subjects, may, without legal interference,
cause certain of their prisoners and charges
to be eugenically sterilized.
C. POSSIBLE NEW FIELDS FOR
EUGENICAL LEGISLATIVE A C -
TIVITY.
Neither the science of eugenics, nor the
practical application of eugenical principles
to legislation generally, has advanced far
enough to warrant the compilation of an
eugenical code. But, if in the future eugeni-
cal considerations modify legislation in
many of its several fields of activity, it is
logical to look forward to such a code, com-
parable, for example, in many respects to
the sanitary codes recently compiled and
enacted.
WhilC' not treating the non-eugenical as-
pects of the subjects, an eugenical code
would over-rule, and in some cases repeal,
incidental eugenical provisions in statutes
on many widely different subjects, and
would systematize the legislation of the
state, having for its purpose the conserva-
tion and improvement of the natural or
hereditary mental, moral and physical con-
stitution of the people. The specific sub-
jects for such treatment, because they have
an essential eugenical bearing, are as fol-
lows: Marriage and divorce; regulation of
the immoral aspect of human reproduction,
such as obscenity, lewdness, fornication,
prostitution, criminal abortion, Und birth
control (so-called); illegitimacy; diflferential
taxation in favor of number and quality of
children; maternal pensions and aid; insti-
tutional segregation — of sexually fertile de-
fectives and inadequates; human pedigree-
registry; immigration; compulsory reporting
o.f cases of cacogenesis; eugenical education,
and doubtless many more.
At present legislation on any of the above-
named topics which does not take into con-
sideration the relation of the specific matter
to human reproduction, and consequently to
the diflferential birth-rate which largely
determines the future quality of the human
stock of the nation, will not function in the
greatest interests of the general welfare.
Moreover, the nation which by wise legis-
lation conserves its better stock, by direct-
ing and encouraging its reproduction along
eugenical lines, will stand a better chance
of success in future international competi-
tion.
Although most of the above-named sub-
jects are themes for future development
and legislation, two of them might well be
promoted by immediate legislation.
1. Eusenical Education. A state may
enact laws providing for eugenical education
State Rights Re Limitation of Human Reproduction
357 '
in its schools. Such instruction could be
eflfectively given in the elementary grades in
connection with the study of history, geo-
graphy, nature study and physiology. In
the high schools and colleges eugenics, if
not made the subject of a' separate course,
may be successfully treated in courses de-
voted primarily to biology, physiology, psy-
chology and sociology, economics and sta-
tistics. Such instruction, if properly planned,
would include, in a manner appropriate to
the age and abilities of the students, the
facts of human heredity, the relation between
hereditary constitution and the success and
achievements of the individual and the race,
analysis of the factors of heredity and en-
vironment, and practical pedigree-studies,
also other factors of eugenical import, such
as mate selection, differential migration,
differential birth-rate, and differential sur-
vival.
Logically such instruction would be ex-
pected in a generation to react in the de-
mand for and the support of legislation
directly ordering eugenical measures. A
case in point is the influence of the com-
pulsory teaching of the deleterious effects
of alcohol on the human system. Laws pro-
viding for full instruction were enacted a
generation ago as "sops" to the temperance
faction. They have borne fruit today as
important factors in the success of consti-
tutional prohibition.
2. Compulsory Reporting of Cases of
Cacogenesis. Doubtless a state may legally
require licensed charity, social, medical and
eugenical field-workers, parole officers, cus-
todial institutions and physicians to report
cases of social inadequacy and of defective
parenthood. Such legislation would be
supplementary to more direct measures
which the state may enact to handle such
cases after they are reported.
Recent laws of several states^ which have
been supported by the courts, demonstrate
the legal authority of the state to require
licensed physicians to report certain dis-
eases. Such authority is justified because
its exercise tends toward the betterment of
the general welfare, by protecting the people
against ill health. By logical analogy the
state could expect to exercise, without suc-
cessful attack in the courts, authority re-
quiring certain licensed social, medical, char-
ity and eugenics workers to report cases of
cacogenesis in the interests of protecting the
nation against hereditary degeneracy. Such
orotection is certainly an essential element
in conserving the general welfare.
The United States Public Health Service
recently published a bulletin entitled "The
Right of the Community to Require Physi-
cians to Report Cases of Disease coming
under their Observation, the Purposes there-
of and Reasons therefor as stated by Courts
of Last Resort." Although laws requiring
the notification of cases of disease are of
comparatively recent origin, they have been
sustained by the courts because they have
proven to be effective agencies in protecting
the public health, and when properly drawn
they do not violate any of the constitutional
provisions of the so-called "bill of rights,"
nor other constitutional limitations upon
legislation. Quoting the above-named bul-
letin:
"The Supreme Court of the United States
in Dobbins v. Los Angeles (195 U. S., 323,
at p. 335) said:
" 'It may be admitted that every intend-
ment is to be made in favor of the lawful-
ness of the exercise of municipal power
making regulations to promote the public
health and safety, and that it is not the
province of courts, except in clear cases, to
interfere with the exercise of the power
reposed by law in municipal corporations
for the protection of local rights and the
health and welfare of the people in the com-
munity.'
"The opinion of the same court in Califor-
nia Reduction Co. v. Sanitary Works (199
U. S. 306, at p. 318) contains the following
statement:
" 'It may be taken as firmly established in
the jurisprudence of this court that the
States possess, because they have never sur-
rendered, the power — and therefore munici-
pal bodies, under legislative sanction, may
exercise the power — to prescribe such regu-
lations as may be reasonable, necessary, and
appropriate, for the protection of the public
health and comfort. * * * Equally well
settled is the principle that if a regulation,
enacted by competent public authority avow-
edly for the protection of the public health,
has a real, substantial relation to that object,
the courts will not strike it down upon
grounds merely of public policy or expe-
diency.' "
While the law makes it the duty of the
licensed physician to report without com-
pensation cases of certain diseases, the phy-
sician himself is protected by the law from
liability to damage which may grow out of
such reporting, even though the report itself
358
State Rights Re Limitation of Human Reproduction
may later be proven to be based upon false
diag-nosis. (Brown v. Purdy, 8 N. Y. St.
Rep., 143). Quoting further the above-
named report:
" The leading court decision regarding the
reporting of cases by physicians is State v.
Wordin (56 Conn., 216), which was decided
December 1, 1887. In that case a physician
was prosecuted for the violation of an ordi-
nance of the city of Bridgeport, Conn., which
provided that physicians must report cases
of 'infectious or pestilential disease.' The de-
fendant was charged with neglecting to report
a case of diphtheria which he attended. He
was found guilty and fined.
"He appealed, claiming that the ordinance
was inoperative and void because (among
other reasons) it was unjust and unreasonable,
inasmuch as it took professional knowledge
for which it paid nothing, interfered with the
physicians' lawful business, and imposed a
public burden upon a class.
"The court (Pardee, J) said:
"In conferring authority upon the legis-
lature of the city to pass the ordinance the
legislature of the State was in the perform-
ance of its duty and in the exercise of its
power to protect its citizens from exposure
to contagious, fatal diseases.
"Of absolute necessity this power inheres
in every organized community; otherwise
there would be only organized suicide. It
takes unwritten precedence of all provisions
for the protection of rights of property and
includes the right to require as much of the
services or property of each as may be
necessary to the preservation of the lives
of all, without provision for payment there-
for. * * *
"Is an ordinance which requires one to
lose a small portion of his time that the
lives of many may be saved oflfensive to
the constitution? An ordinance requiring
the person who in the night season should
first discover a dwelling house in the city
to be on fire to turn aside and arouse the
inmates and sound the alarm without com-
pensation would not shock anyone. Nor, wc
think, does one requiring the person who
first discovers in a crowded street the pres-
ence of a contagious, fatal disease to notify
without compensation the official charged
with the duty of preserving health and pro-
tecting life therein. If to compel this gra-
tuitous service is to violate the principles of
the social compact, it would be better to
dissolve and rcorganii^e. 'i' * ■*
"In his concession that the ordinance
would be valid in the ravages of pestilence,
under presence of an overwhelming neces-
sity to prevent public calamity, the defend-
ant concedes the whole case. An ordinance
of this character must be intensely practical;
a proper regard for human life demands
that a contagious, fatal disease shall be
barred rather than driven out.
"The inequality of burden of which the
defendant complains is only in seeming.
Persons ofifering their services to the public
as healers of diseases and requiring pecun-
iary compensation therefor, thereby assert
their ability to detect the presence of it
when the great mass of the people can not.
The people accede to the truth of their
assertion, and in the matter of life surren-
der themselves to their keeping. Of course
an ordinance in the interest of life must
detect the presence of. a fatal contagious
disease at the earliest possible moment.
Therefore with impartial action it compels
that member of the community who is the
first to have sight and knowledge of it to
give note of warning to others from whom
its presence is hidden. It would be idle to
require, indeed there would be danger in
accepting, this service from those who can
not see or do not know. The burden is
made to rest upon every member of the
only class which is in a condition to con-
tribute anything to the accomplishment of
the purpose of the ordinance."
Conclusion: Judging from the foregoing
court decisions sustaining the power of the
state to compel physicians, in the interest
of the general health of the community, to
report cases of communicable diseases, well
drawn laws or ordinances requiring medical,
social .and eugenical field-workers, in the
interest of the hereditary soundness of
future generations, to report cases of hered-
itary degeneracy would be upheld.
3. Registering Trained Eugenical Investi-
gators.
There are several types of social field
work now being conducted in the United
States. Each type has its own aims, methods
and ideals, and requires specific talents and
training, and has thus become a specialized
occupation. However no state has, as yet,
registered or licensed these workers, who,
like physicians, come in close contact with
families. This contact is engineered entirely
by diplomatic skill on the part of the worker.
Legal registration would make much simpler
the relation between field investigators and
the person or family supervised, aided, or
studied, and would alsQ insure the public
State Rfghts Re Limitation oe Human Reproduction
359
against abuse of those confidences which are
given to the field investigator.
The legal registration of nurses has
proven to be of considerable use to the
nurses themselves, to the medical profession,
and to the communilx- at large. A similar
benefit would be expected to arise from the
registration of social workers. At present,
and until the several types of social work
become still more highly stabilized and pro-
fessionalized, the general title "registered
social worker" should sufiice for all types
of social workers. In the future perhaps
special legal provisions for registration and
certification of eugenical field workers will
become desirable. Certainly the latter class
of investigators constitute a specially trained
group of persons, who, in order to do their
work effectively, must enjoy certain privi-
leges and must be held to certain responsi-
bilities, especially in the homes of families
which have one or more members in a
custodial institution of one type or another,
and from which the field investigator may
be working.
There is also the matter of professional
,standard to be maintained, and a certain
professional contact between field workers
and the better and highly talented families,
which latter are the subjects of eugenical
field investigations quite as often as are
degenerates. These constructive studies are,
but in another way, just as important to the
state as are researches into the family "quali-
ties of the socially inadequate.
A bill recently introduced into the legis-
lature of California by Senator Gates is en-
titled ''.^n act to provide for the examina-
tion and registration of social workers,
creating an examining body therefor, and
providing for an association for registered
social workers." This is a general bill which
lists the several t3fpes of investigations which
come under the term "social work," It
would doubtless be satisfactory to eugenical
investigators to have family history investi-
gations specifically listed as one of the sev-
eral items under social work, for the pur-
pose of certification and registration. By
this bill, it would be illegal for anyone not
registered after examination, to describe him-
self or herself as a "registered social worker."
For persons who might do so, the bill pro-
vides punishment by fine upon conviction.
There is another aspect of legal registra-
tion and certification of field investigators
which is quite important. Registration would
probably enable the properly trained and
certified person to testify in court as an
expert in matters involving an analysis of
human pedigrees. Honorable Harry Olson,
Chief Justice, ^Municipal Court of Chicago,
(November 3, 1921) said, "Field workers
will always be permitted to testify as to the
facts, but as to the significance of these facts,
especially where they involve mental dis-
eases, I think they will never be licensed as
physicians are now. Physicians will be called
in that field while the eugenical worker will
be called only for the facts as investigation
has disclosed them, but, of course, the legis-
lature can lay down standards, which when
made, would qualify an individual as an ex-
pert in that particular field."
In the matter of reporting cases of hered-
itary degeneracy or cacogenesis, the state
would find its system working much more
effectively if, besides requiring such reports
of licensed physicians, it were to register all
types of social investigators, and were to
require reports on cacogenesis from them
also. The reporting of hereditary degen-
eracy is as essential an element in purging
the state of its degenerate family strains as
the compulsory reporting of contagious dis-
eases is a necessary factor in protecting the
people of the state from pestilence.
SUMMARY
1. The doctrine of adequate social remedy.
.\ living democracy must believe in and
exercise the doctrine of adequate social rem-
edies. In the absence of specific constitu-
tional prohibition, the courts have generally
sustained the power of the state legislative
authority to apply any sound and reasonable
social remedy for the general betterment.
The principal concern of the courts in such
cases has been to prevent violation of the
bill of rights, especially undue discrimina-
tion or class legislation as it is sometimes
called.
2. The state's control of life and liberty of
criminals.
As just and fitting punishment for crime,
the state has always exercised, in the in-
terests of the public welfare, the right not
only to take away a person's liberty by
imprisonment, but also in extreme cases to
take the life of the individual.
3. Non-punitive control of conduct.
But the large group of legal, social or
therapeutic remedies which impinge upon
personal freedom have no element of pun-
ishment in them. Among such remedies are
360
State Rights Re Limitation of Human Reproduction
vaccination, quarantine, commitment to hos-
pitals for the insane, the feeble-minded, and
other types of the socially inadequate, and
limiting marriage in the interest of normal,
healthy and socially valuable offspring.
4. Control of emigration and immigration.
Every sovereign state holds, as an elemen-
tal necessary function, the right to decide
who of its citizens shall be permitted to
leave the country as emigrants, and who
among aliens, shall be permitted to enter as
visitors or immigrants. This principle bears
greatly upon the immediate welfare of the
state, but in the long run, if the immigrants
be potential parents, it bears vastly more
upon the welfare of the state by influencing
the character of the inborn qualities of future
generations.
5. Military conscription.
In demanding rnilitary service, the state
exercises its undoubted sovereign authority,
under the principle that present individual,
welfare, convenience and personal safety are
subordinate to the ultimate common welfare
of the nation and state.
6. Birth-Control.
The laws governing birth-control in the
United States are still chaotic and unhar-
monized with the protection of public mor-
als and in promoting eugenical welfare. The
application of a new legislative and judicial
principle is needed in this field. Such a
principle calls first, for the control of human
reproduction on the basis of encouraging
high fertility by sound stock, and forbidding
reproduction by degenerate stock, regardless
of present economic status; second, the ele-
ment of the possibility of immorality should
be cared for by legal response to the means
and spirit exercised in promoting birth-
control.
7. Compulsory reporting of hereditary de-
generacy.
Because of the similarity in method and
purpose to the compulsory reporting of cer-
tain diseases, the state can, if it so desires,
require the compulsory reporting of cases of
hereditary degeneracy by licensed physicians
and professional social field investigators.
It is clear, also, that the state may legally
permit private citizens to report cases of ap-
parent or presumed family degeneracy.
8. Legalized eugenical sterilization.
Both by many close and logical analogies,
and by a few direct and specific eugenical
sterilization statutes enacted and tested by
the courts, the several states of the American
Union are demonstrated to possess the power
to enact and to enforce statutes which provide
for the destruction of the reproductive pow-
ers of individuals, provided such particular
measures are designed for and proven to be
effective in promoting the soundness of the
hereditary physical, mental and moral quali-
ties of future generatons.
CHAPTER XI.
EUGENICAL DIAGNOSIS.
A. Guiding Principles for the Determination of Potential Parenthood of
Socially Inadequate Offspring.
General Factors of the Task 363
a. Pedigree-facts 362
b. Knowledge of heredity 363
c. Application of pedigree-facts to the rules of heredity 363
Notes on Practical Eugenical Diagnosis 364
1. Divergence between personal qualities and breeding qualities 364
2. The individual of pure stock 364
3. The individual of mixed stock 364
4. Range of individual breeding qualities 365
5. The complexity of hereditary traits or characters 365
6. Specific rules of inheritance 365
a. Recessive traits 365
b. Dominant traits 365
c. Sex-linked traits 365
. d. Other types of inheritance 366
7. Hereditary nature of the co-parent 366
8. Eugenical salvage — the separation of good traits from bad in the
same individual 367
9. The factor of environment 367
10. Eugenical standards 368
a. The biological standard 368
b. The legal standard 368
11. Types of the socially inadequate 369
12. Common sense and pedigree study 369
Summary 370
B. List of characters in man classified according to their method of in-
heritance 371
I. Traits which blend in the F; offspring 372
II. Traits showing dominance of one condition and recessiveness
of the allelomorph in the first generation and segregation
in subsequent generations of offspring 372
III. Sex-linked traits 376
IV. Probably Mendelian, but dominance imperfect or uncertain...; 377
V. Clearly hereditary, but rule of inheritance uncertain 377
VI. Associated traits 380
C. Tables showing types of matings and offspring 380
Type a. In case the defect is recessive 381
Type b. In case the defect is dominant 382
Type c. A sex-hnked trait 383
Type d. A trait that blends 384
Type e. A composite trait 385
D. References 392
1. Research Institutions 392
2. Societies 392
3. Universities and colleges with active depai tments oi: genetics 393
4. Custodial institutions for socially inadequate conducting field
studies in eugenics 393
5. Courts which have untertaken scientific eugenical studies 394
6. Journals ^^^
7. Books 394
362
EuGfiNicAi, Diagnosis
EUGENICAL DIAGNOSIS.
A. GUIDING PRINCIPLES FOR THE
DETERMINATION OF POTENTIAL
PARENTHOOD OF SOCIALLY IN-
ADEQUATE OFFSPRING.
Eugenical diagnosis is the determination,
by case-records and pedigree-analysis, of the
mental, physical and temperamental traits
which a given potential parent may transmit
either patently or latently to his or her pos-
sible offspring. Such diagnosis includes not
only the determination of the limits and
possibilities of quality of a given character
istic, but also must indicate the distribution
and combinations of the traits in question
among the possible offspring.
Pedigree-analysis is here taken to include
also the study of the constitutional make-
up of the propositus' because the possession
of specific traits by the propositus, when
studied in relation to the family distribution
of these given qualities, is an important fac-
tor in genetical determination.
Eugenical diagnosis is equally useful in the
determination of the breeding'' qualities of
sterling as well as of degenerate individuals.
It is clear that the whole task of constructive
breeding in man is dependent upon the
success of such diagnosis. Wlhile not stated
in so many words, the principal end of re-
search and the purpose of books and papers
on the subject of human heredity is, in its
practical aspect, to enable predictions in
hereditary behavior to be made.
General Factors of the Task. Eugenical
diagnosis is not an exact science like mathe-
matics, nor yet even so exact as astronomy
or engineering, but it is a biological science
the sucdess of which, in general, depends upon
the application of scientific principles, wide
experience and common sense. Specifically its
operation involves three fundamental factors:
first, the pedigree-facts in the particular case;
second, the knowledge of rules governing
the inheritance of the (raits in question; and
third, the scientific skill with which the two
foregoing factors are considered in connec-
tion with each other.
Parenthetically, it should be here stated
that, in practical eugenics, the physician has
an important part to play before it is neces-
sary for the cugenicist to act. namely, the
physician must determine whether the pro-
positus is a potential parent, that is, sexually
fertile now or prospectively. Of course, no
individual can be a "potential parent of
socially inadequate offspring" unless he or
she is first of all a potential parent. If the
physician demonstrates that an individual is
a potential parent, then the eugenicist must
find out whether the possible offspring of
the particular propositus would, according
to the established pedigree-facts, the laws of
heredity, and within the quality and percent-
age standards set by law, be social inade-
quates.
(a) Pedigree- facts. It has been demon-
strated many times in practical breeding ex-
periments with plants and animals, and in
family history study in man. that selection
for parenthood on the basis solely of quali-
ties which show in the individual has never
resulted in great racial progress. On the
other hand, even though the facts of heredity
are still imperfectly understood, the selection
for parenthood on the basis of both individu-
ality and pedigree has resulted in the last two
hundred years in the building up, by the
civilized nations of the world, of a wonder-
fully superior group of highly specialized
and highly successful domestic plants and
animals.
By pedigree-facts are meant authentic
records which describe in detail the specific
traits under consideration, and the distribu-
tion of these traits among the several mem-
bers of the family-tree to which the particu-
lar propositus belongs. Consorts not blood-
kin to the propositus are not to be con-
sidered unless such consorts are parents of
children who carry blood common with the
propositus. To be of practical use, pedigree-
facts must be so marshalled that the analyst
can by their use trace the descent and re-
combination of given hereditary traits in
the family-tree under consideration.
How to secure adequate pedigree-facts is
thel first practical problem which the eugeni-
cist meets. It is bein,g solved in the United
States at the present time in a satisfactory
manner by the training of a corps of profes-
sional eugenical field workers. There are
now (1922) more than one hundred and fifty
such investigators in this country. Their
business consists in starting with a gTven
individual, called the propositus; then, after
' For definitions se Chap. XV (p. 446).
" The word "breeding" Is an elegant one,
and, contrary to a connotation which It conveys
to many minds, It is not to be Inferred that
its use In connection with eugenics Is lowering
the methods and standards of human repro-
duction to those of plants and animals. To
persons acquainted with the subject, breeding
connotes the process of Improvement In
natural qualities due to careful mate selection.
EuGENiCAL Diagnosis
363
securing a thorough case-history of this
particular individual, and securing records
of medical examination, psychiatrical and
anthropological tests, the worker goes to the
home territory of the propositus. There
from first-hand evidence the family connec-
tions of the individual are established, and
then, in order to present the family relations
to the analyst, clearly and conveniently, a
family-tree is plotted in pedigree or genealo-
gical fashion. The field worker next pro-
ceeds to secure case-histories and bio-
graphical records of the various members of
the family-tree, with particular emphasis
upon those persons closest in blood and kin
to the propositus, and upon those traits
which are being diagnosed genetically in the
propositus.
In this work of establishing kinships and
individual relationships, the student of human
affairs has an advantage over the plant and
animal breeders, for the latter, if exact pedi-
grees are not kept, except for a few facts
of relationship-evidence reconstructible from
the evidence furnished by the traits of the
individual, loses all hope of restoring them;
but in the case of man there are such wide
acquaintances and so many records of births,
marriages, deaths, and newspaper accounts,
church and town records, and often genealo-
gical trees maintained by the family, and in
addition the facts of individual traits, that
the field worker, if he be a specialist in his
work, is in most cases able to restore
to a satisfying degree of completeness the
family-tree and individual analyses of its
several members. It is the experience of
field workers that practically all of the cus-
todial institutions, societies for community
betterment, and especially child welfare and
charities-and-corrections organizations, are
particularly anxious to aid the investigators
in ferreting out the truth, when sought for
the purpose of eugenical diagnosis. Officers
of the law also have proven uniformly co-
operative. The evidence is that sources of
information and social and individual co-
operation are abundant to enable the restor-
ation of adequate records of a large per-
centage of social inadequates who are
thought to be cacogenic. The use of these
sources and cooperative aids depends upon
the skill and diplomacy of the field worker,
which is but one reason why the field worker
must be especially adapted and trained to
the task of gathering first-hand pedigree-
data in the field. There are of course some
individual cases concerning whom no family
connections can be established, but these
arc surprisingly few in relation to the whole
numbers of social inadequates found in
American communities and custodial institu-
tions.
Except for the aid of officers of the law
and charitable institutions, the method of
restoring accurate pedigrees of anti-social
and of highly social individuals, or members
of the so-called better families, is essentially
the same. In both cases the field worker
must go to the source of information. Ex-
perience has shown that there is not very
much difference in the difficulties met in
working out these two kinds of pedigrees.
If the better families often have more
printed records of a genteel nature, such as
genealogies, the histories of the more de-
generate have, in compensation, records of
the courts of law and of aid rendered by
individuals and social organizations.
b. Knowledge of Heredity. The second
factor, the knowledge of the inheritance of
particular traits, is one which is becoming
much more exact as time passes. Even now,
as a result of eugenical arid genetical re-
search, the hereditary formulas for many
human traits are known. The promising
thing about the situation is that by the mod-
ern system of investigation the secrets of
nature in reference to human heredity yield
themselves readily. We cannot here give
an account of all of these investigations.
It must therefore suffice to give references "
to some of the more important books and
papers in which the records of these in-
vestigations appear. The eugenicist is an
expert legal witness, like the physician and
the engineer, and must keep abreast of the
times by constant reference to the latest
literature and current researches in his pro-
fession. The sources of research and record
which may be of use to the eugenicist are
research institutions, scientific societies, the
genetical departments of certain universities,
the eugenical departments of certain of the
greater custodial institutions for the socially
inadequate, and a growing number of books
and journals.
c. Application of pedigree-facts to the
rules of heredity. The third factor consists
1 A short, practical bibliography covering
a few references to this subject of use
to the eugenicist appears at the end of the
present chapter. In connection with this bib-
liography there is given also a list of research
institutions, university departments, custodial
institutions and scientific societies which are
working on the problems of eugenics and hu-
man heredity.
364
EuGENiCAL Diagnosis
of the scientific application of the pedigree-
facts of the particular case to the demon-
strated laws of heredity which govern the
particular human qualities in question. Just
as the trained eugenical field worker has the
task of gathering at first-hand the pedigree-
material, and the investigator the task of
analyzing pedigrees for the purpose of de-
ducing the laws of human heredity, the
practical eugenicist in a given case has the
task of critically and scientifically coordinat-
ing the facts presented by the foregoing two
types of workers, to the end that a definite
eugenical diagnosis or prediction may be
made and demonstrated.
Although eugenical diagnosis is rhade on
a purely biological basis, without regard to
what the statutory law may set up as the
legal eugenical standard, as soon as the
biological diagnosis is completed, an appli-
cation of the demonstrated biological facts
to the statutory provisions governing the
determination of cacogenesis must be made.
The standards of the law are arbitrarily and
definitely established, but supposedly reason
and logic prevail in their enactment. If
in the sum of his hereditary qualities an
individual is legally proven to fall Jielow the
statutory line or zone of demarcation, such
individual may then be legally declared to
be a cacogenic person. Thus the eugenicist,
so far as law is concerned, is called upon
to perfoi-m the services of an expert witness,
to apply general rules and principles of
science to the facts established in the par-
ticular case. Upon the expert testimony of
this nature should depend the decision of
the court whether the particular individual
is, as alleged, a cacogenic person in the
eyes of the law, and must therefore be
sterilized, or whether the individual is not
cacogenic, and therefore may not by state
order be made sexually sterile.
NOTES ON PRACTICAL EUGENICAL
DIAGNOSIS.
While there is much to be learned concern-
ing human heredity, still science has found
out a number of principles which appear to
be fundamental in pedigree analysis. These
principles and their accompanying explana-
tions which follow may be used as practical
guides, so far as such guides are at present
possible, in determining the genetic or
hereditary make-up of a given individual,
and consequently in predicting the heredi-
tary qualities which the person in question
will, under given conditions, transmit to his
or her ofifspring
1. The Divergence between personal
qualities and breeding qualities. If the re-
semblance between the breeding qualities of
a given individual and his or her personality
were exact, there would, of course, be no
biological need for genealogical records in
man, nor for pedigree-registry associations
for domestic animals and plants. The fact
that the germ-plasm carried by the individ-
ual is not, except in the case of those few
who are thoroughly homozygous, or "pure-
bred," an exact reflection of the inborn per-
sonal traits, makes the determination of the
specific breeding qualities of the selected
individual a difficult and complex task, to
be achieved only by scientific and painstak-
ing analysis and authentic records. The
great problem of the eugenicist, as of the
constructive breeder of animals and plants,
is to indicate as fit for parenthood those in-
dividuals who, regardless of their own per-
sonalities, carry in their germ-cells the de-
terminers for desirable physical, mental and
temperamental qualities, sufficient in number
and quality to insure, with proper mates,
socially valuable offspring.
2. The individual of pure stock. Whether
a plant, an animal, or a human being, a
pure-bred individual is one in which, or in
whom, all of the essential breed characteris-
tics are carried in the germ-plasm, and only
those qualities which show in the personal-
ity of the individual are capable of being
transmitted to the offspring of the particular
individual. Such purity of blood is obtained,
especially among mixed races, only after
many generations of prolific breeding prop-
erly directed and accompanied by radical
culling, and even then, in many of the arbi-
trarily indicated non-essentials, it is highly
probable that even the most pure individuals
will be found to be highly complex or
mongrel. But relatively speaking the indi-
vidual of pure stock "breeds true."
3. The individual of mixed stock. A
mongrel is an individual generally of an
undesirable combination of characters,
whose body and personality on the one
hand, and whose qualities as a sire or a
dam on the other, are far apart. Such a
person, animal or plant will not "breed
true". In order to determine the breeding
qualities of an individual of mixed ancestry,
it is all the more necessary to secure and
to analyze most carefully accurately kept
and extensive fiedigree-records. Without
EuGENiCAL Diagnosis
365
such records the breeder can only guess con-
cerning the nature of a mongrel's offspring.
4. Range of individual breeding quali-
ties.^ The potential parent, whether pure-
bred or mongrel, carries in the germ-plasm
and may pass on to his or her offspring
the determiners for at least all of the hered-
itary qualities which show in his or her
body and personality, and, in addition, may
carry the determiners for many qualities
which are not patent in the individual; but
not all of these potentialities will necessarily
pass to the same offspring. Furthermore,
the determiner for given quality may
pass to a given offspring, but if it be reces-
sive to its allelomorph, or hereditary com-
plement, which is contributed by the co-
parent, it will not show in the fir'st genera-
tions, and thus may remain submerged for
a number of generations, until a favorable
mating permits it to become patent. ,
5. The complexity of hereditary traits or
characters. In his constitutionr.l make-up,
an individual is a composite of hereditary
traits. These traits are qualities or charac-
teristics to which we give names. They
may be (a) simple natural unit traits, for
which the rules of inheritance are very
clear; or they may be (b) arbitrary unions
associated only in name, in which case they
are composed of several genetically inde-
pendent qualities; or they may be (c) hered-
itary complexes associated in the germ-
plasm and into each of which in an insepar-
able manner many hereditary qualities enter.
It is highly probable that a large majority
of the hereditary traits in man to which we
give names are of this latter highly complex
nature. There are also doubtless many such
natural complexes which are as yet not
named.
6.. Specific rules of inheritance.^ If a trait
possessed by the propositus is a single uni*-
of inheritance, it is a relatively easy task to
make an eugenical diagnosis in reference to
the capacities and limitations of its possessor
in passing it on to his offspring. From the
standpoint of the rules of inheritance, there
are three principal types of single unit traits.
These deserve special consideration because
they are representative of the elementary
principles underlying the great bulk of nat-
ural inheritance, and into such simple be-
havior entities the science of genetics seeks
to analyze the more complex characteristics.
a. Recessive Traits. These characters
are called recessive because if an individual
possessing one of them is mated with a
member of a race not possessing the same
character, the trait disappears in the first
generation. (Fi) We shall not here go fur-
ther into the details of genetics other than
to call attention to the fact that a recessive
trait may skip one or more generations;
that on the average, in mixed stock, a rela-
tively small number of the members of the
family are apt to be affected; that affected
persons carry the ability to reproduce this
particular trait, but not its complement; that
a normal member of a family in which the
incidence of recessive trait is high may
carry a germ-plasm "taint" which can be
determined only by many matings, hence
with recessive traits there is much more
danger of insidiously contaminating the
germ-plasm of the family, than is the case
with dominant traits; and, finally, if both
parents are unaffected and the trait is de-
monstrably a recessive one, it is sufficient
'evidence, if it appears in the offspring, that
it came from both sides of the house.
b. Dominant Traits. The dominant trait
is the complement of the recessive. In
a first generation cross between pure races,
one of which possesses the trait and the
other does not, the dominancy of one of the
contrasted traits over its mate is demon-
strated by the former's appearance in all of
the first generaton (Fi) offspring. Prac-
tically a dominant trait is recognized because
it behaves as follows: It does not skip a
generation; on the average, in mixed stock,
a relatively large number of members of the
family are affected by it; a person who is
free individually from the trait cannot carry
the "taint" in his blood, and, therefore, with
dominant traits, there is less danger of in-
sidiously contaminating the germ-plasm of
the race than is the case with recessive
traits.
c. Sex-linked Traits. There are a num-
ber of human traits, such as color-blindness
and hemophilia, which are dominant in
males and recessive in females. Their rule
of inheritance is as follows: An affected man
may marry a woman of unaffected stock, in
which case none of their children will show
the trait, and indeed none of the sons will
carry it latently in their germ-plasm, but
half of the daughters of such a union, while
not showing the trait in their bodies, will
1 See pp. 371-380.
^ See Section B of this chapter. A few
characters in man classified according to their
method of inheritance. Also Tables showing
types of matings and offspring.. Section C
of this chapter.
'^'W"^
366
EuGENiCAi, Diagnosis
possess the potentiality of passing it on to
the next generation. If such a "tainted"
daughter marries a man who is unafifected,
one half of their sons will show the trait
personally, the other half will be free from
it; while none of their daughters will' show
the trait, but one half of them will carry
it in the same manner as their mother, while
the other half will be entirely free from it,
both. personally and in their hereditary capac-
ities.
If in an exceptional case an afifected man
marries a woman who carries the trait in
her germ-plasm, half of their sons will show
the trait like the father, the other half will
be free from it. Of their daughters, one
half will carry the determiner for the trait
in all of their germ-cells, and may or may
not be exceptional by showing it in their
own bodies. The other half of the daughters
will, like the mother, not show the trait, but
carry it in half of their germ-cells.
d. Other types of inheritance. The three
rules of transmission of unit-traits above
described are fundamental in their nature,
but in the process of transmis.sion from one
generation to another the determiners for
these traits often undergo a special series
of hazards which destroy the usual simple
mathematical calculations known as Men-
delism. When such disturbances occur, there
are corresponding modifications in the rules
of inheritance above outlined. The physical
basis ' for such changes is found in such
phenomena as linkage, crossing-over, inter-
ference, non-disjunction, lethal factors, and
the like. It is probable also that evolution-
ary changes both of an advantageous or
progressive nature and a disadvantageous
or degenerative nature are caused by chemi-
cal changes in the germ-plasm (the chromo-
somes) in the process of transmission from
one generation to another, Such changes
are known as mutations.
Gradually the laws governing different
traits and trait-complexes are being worked
out in plants, animals and man. It is neces-
sary in each case not only to know whether
the basic clement in the character being
studied is dominant, recessive or sex-linked,
but the diagnostician must also be ac-
quainted with the inheritance of the parti-
cular quality as it behaves in the particular
family to which the propositus being sub-
jected to eugenical diagnosis belongs.
7. Hereditary nature of the co-parent.
In eugenical diagnosis an individual is or
is not a potential parent of socially inade-
quate offspring, regardless of the hereditary
nature of an actual or possible co-parent, A
constitutional degenerate will contaminate
the race more surely and just as extensively
through mating with a sterling as with a
mongrel parent, fertility being equal in the
two matings. The results of degeneracy may
not be so patent in the first generation as when
a degenerate mates with a degenerate, never-
theless it can be mathematically and biologi-
cally demonstrated that they are just as defi-
nite and extensive. A co-parent of good
quality may raise the standard of the lower
parent in the offspring, but the better qual-
ities are pulled down in accomplishing this
mediocre result. While the principles of segre-
gation and recombination of traits insure
that, if enough such mediocre families inter-
marry, hereditary qualities will again segre-
gate themselves into many grades and
types of individuals, still such an original
mixture is retrogressive from the stand-
point of racial progress, because it compli-
cates and delays the centering of degenerate
qualities in single individuals, which center-
ing is essential to culling, unless indeed all
contaminated as well as all thoroughly de-
generate stock is to be denied the privilege
of reproduction.
If a potential parent of socially inadequate
offspring be already a parent, his or her
offspring will serve the useful purpose of
aiding eugenical diagnosis of the particular
parent, just as in every mating, regardless
of its fitness or of the quality of the parents,
if children result, their constitutional char-
acters throw light upon the genetic make-
up of the parents.
In objecting to the estimation of eugeni-
cal values without regard to the nature of
the co-parent, it is often pointed out that in
domestic animals the pure-sire method, in
which the sire is of the desired stock and
the dam may be a mongrel, racial progress
is very rapid. This is one case in which the
analogy between practical animal breeding
and practical eugenical processes in the
human race does not hold good. If we are
to set up different standards of eugenesis
for the twoi sexes, we must as a logical cor-
ollary establish a system of polygamy.
Moreover the evidence of history shows that
in man the so-called pure-sire method of
assimilating a lower race into a higher one
1 The Physical Basis of Heredity, by Thomas
H. Morgan, gives the latest evidence on the
correlation between the behavior of chromatin
and of hereditary traits, as they pass from one
generation to another.
EuGENiCAL Diagnosis
367
has worked out successfully only in nations
in which illegitimacy and polygamy are
common. In like manner, within the same
race, the process of assimilating a lower
stock into a higher one by the pure-sire
method is not practical in nations in which
polygamy and illegitimacy are not permitted,
but among whose people the marriage rela-
tion is held sacred. It must therefore be uni-
versally acknowledged that the eugenesis
or cacogenesis of an individual is indepefi-
dent of the nature of the co-parent, although
the natural traits of the co-parent throw
much light on the unborn qualities of the
propositus.
8. Eugenical salvage — the separation of
good traits from bad in the same individual.
Theoretically the unit of eugenesis, and
likewise of cacogenesi;, is the hereditary
unit-quality or trait, because natural hered-
itary qualities are proven in family history
descent to be subject to segregation and
reconibinatioui The individual,, which in
most cases is personally an inseparable com-
plex of good and bad hereditary characteris-
tics, is also an eugenical or cacogenical
unit, depending upon the predominance of
valuable or degenerate natural traits. Still
more extensive than the individual is the
family or strain possessing to a large degree
the same hereditary constitution. Thus or-
ganized society, in seeking to purge the
race of its degenerate qualities, would wish,
if- it were possible, to eliminate only the
degenerate traits and to retain the valuable.
But practically, the law cannot proscribe cer-
tain unit-traits in an individual by ordering
"that traits 'a' and 'b' shall not be per-
mitted to reproduce themselves because they
are degenerate, but that the good qualities
'c' and 'd', carried by the same individual
who possesses 'a' and 'b', shall be permitted
to reproduce". The process by which traits
are carried from generation to generation
does not permit so clean-cut a system of
segregation. If society is to be extremely
radical in its culling system, it may proscribe
whole families as comprising stock which
is undesirable. But the student of pedigrees
has learned that in practical eugenics the
unit of selection for reproduction or denial
of reproduction is not the trait by itself,
nor the family, but the individual. It is
thus apparent that eugenical. selection must
involve, the destruction of some good quali-
ties along . with the bad in the individual
whose descent lines are cut off, but it is
fortunate that eugenical selection does not
of necessity involve the eugenical destruc-
tion of a whole family because certain of
its individuals are proven cacogenic.
This necessity of a clean-cut decision as
to whether a given individual, with his
whole repertoire of hereditary qualities, good
and bad, may be permitted to reproduce,
presents one of the most serious problems
to the eugenicist, as it has done in ail ages
to the constructive breeders of plants and
animals. The particular question is always
this: We have here a given individual of
mixed desirable and degenerate hereditary
qualities. In the long run, would the race
be better off if this mixed personality be
denied the right to reproduce, or are some
of his sterling qualities so valuable that the
race can well afford to permit him to re-
produce, meanwhile trusting to the principle
of segregation and recombination of traits
in later offspring to concentrate the valuable
qualities in one set of inviduals and the
degenerate in another? The answer to this
problem depends, of course, upon the rela-
tive social values of the good and bad in
the original mixed personality. It is thus
obvious that until the biological sciences
of medicine, anthropology and genetics make
much more progress, it will be impossible
to lay down specific rules for governing the
salvage of good hereditary qualities when
mixed with bad in the same individual. At
present, at one end of the series a person
possessed of many valuable traits with but
few undesirable ones calls for conservation
and reproduction; at the other end of the
series an individual characterized by many
degenerate qualities with but few good ones
calls for denial of reproduction. In the
middle of this series there is a wide zone
which neither the science of heredity nor the
statutory law may as yet succesfully attack.
Therefore the law may well refuse, for
many years at least, to draw a sharp line
cutting this series, in an arbitrary manner,
into a cacogenic and an eugenic portion.
Both the statute and its practical adminis-
tration, so far as its application to steriliza-
tion is concerned, may well confine their
activities to cases of mixed qualities well
toward the lower end of the series, because
in this latter region there are at present in
America many cases the eugenical diagnosis
and elimination of which will occupy the
administrative resources of the country for
many years to come.
9. The factor of environment. The phy-
sician, the anthropologist, and the psychia-
trist in examining the individual, and the
368
EuGSNiCAi< Diagnosis
field worker in the study of the pedigree in
(he field, have constantly borne in upon
them the necessity of separating, so far as
possible, the factors of heredity and environ-
ment, in determining the causes of the
character and condition of the particular
individual. If this separation cannot be
accomplished, then neither sociology on the
one hand nor eugenics on the other can
claim to' be sciences. Eugenics applies to
those hereditary constitutional qualities
which determine the fundamental limitations
and capacities of the individual. In this
science as in all others, successful measure-
ment and prediction are the criteria of prac-
tical worth. If by the study of authentic
pedigrees and life histories eugenics can, to
a definite degree, predict the hereditary na-
ture of the oflfspring of a given person, then
to just such degree is eugenical diagnosis
a science.
It serves no good purpose, either to the
student of heredity or of environment, to
claim extraordinary potency of the particu-
lar factor which the given student repre-
sents. The first task in eugenical diag-
nosis, as in most of the studies of human
nature, is to separate the factors of hered-
ity and environment. Some of the clearest
demonstrations of the necessity for such
separation are shown in the pedigrees of
persons who are diagnosed as insane. There
are many persons who break down with in-
sanity of one type or another, who their
physicians declare would not have broken
down had their surroundings been different,
that is, had they been subjected to different
stresses of life. Thus the environmental fac-
tor is equally important with the hereditary.
In this case it is not the insanity, but the
predisposition to it, that is inherited. Field
workers report families in which there is a
high inciden'ce of a given type of insanity,
and among the members of such families it
is quite common to have stresses which seem
most trivial given as the exciting cause in
their families. On the other hand, in fami-
lies in which the incidence of the mental
disease is very low and the type not serious,
oftentimes a most formidable array of excit-
ing causes is necessary in order to break
down those who are potentially insane.
The task of separating the hereditary and
environmental factors is difficult, but unless
it be clearly accomplished, it is impossible
to achieve a definite prediction concerning
the hereditary potentiality of a given indi-
vidual.
10. Eugenical standards.
(a) The biological standard. The biolog-
ical standard, below which an individual
falling would be classed as uneugenical be-
cause of his hereditary potentialities, is an
ideal one toward which the eliminative pro-
cesses of eugenics must tend if they would
ultimately achieve a purging of the race of
its degenerate qualities. These biological
standards are not subject to arbitrary shift-
ing by legislation, but are determined by the
practical working out of those biological
laws which govern the inheritance of nat-
ural traits, and of those laws which in the
social organism control mate-selection, in-
cluding the differential marriage rate among
individuals of varying natural social ade-
quacy, also those biological laws which gov-
ern differential fecundity and survival.
(b) The legal standard. But besides the
theoretical eugenical standard, there must
for practical purposes be a legal standard
for the guidance of administrative officers
in selecting individuals for the purpose of
denying them the right of parenthood. It
is clear that the legal standard must be low
enough to exclude from its scope individuals
of doubtful eugenical value. This exclusion
should be maintained until both the science
of heredity and practical eugenical adminis-
tration have made considerable further ad-
vance. But the present legal standard must
nevertheless be a definite one, even if it be
neither ideal nor flexible enough to fit every
case. A parallel case is that of the law in
placing the age of criminal responsibility
at seven years. In so doing it may in some
cases rate an individual as responsible who,
though many years older than seven, is in
fact not responsible; whereas it may exclude
frorn responsibility an individual of five or
six who by the best psychological tests may
prove to be morally responsible. Until the
criteria for determining moral responsibility
are definitely set forth by psychologists, in
rules which the law may incorporate, the
best the law can do is to set forth this low
arbitrary standard.
The law must first of all be practical. It
must also take cogrnizance of advance in
science, and when possible establish a flex-
ible standard which will lend itself to adjust-
ment to fit the facts of as many cases af
possible. In the Model Law as drafted, and
reported in Chapter XV of this book, the
standard of cacogenesis is placed low, and
is as flexible as the existing knowledge of
heredity will permit, so that neither individ-
JiuGUNiCAL Diagnosis
369
ual injustice nor social injury can be wrought
by its application. With the advance of
knowledge and increased experience in eu-
genical diagnosis and court procedure, the
legal standard of cacogenesis may be both
raised and made to fit more exactly a still
greater percentage of the cases.
11. Types of the socially inadequate. If
an individual, regardless of his hereditary
constitution, could by proper training be
made to serve some Valuable social function
and thus to contribute in some manner to
the common weal, there could be no object
in negative eugenics or the denial of parent-
hood to certain individuals, in which case
eugenics would have to confine its activities
to securing fit matings among its better
classes. But as modern society is organized,
it has to take cognizance of many individ-
uals who, on account of defective or handi-
capping inheritance, or other msfortune, are
unable, despite training, to maintain them-
selves without much social direction and
help. They thus constitute a handicap to the
well-being of the body politic. Specifically
these social inadequates may be classed as
follows:— (1) Feeble-minded; (2) Insane (in-
cluding the psychopathic); (3) Criminalistic
(incl. the delinquent and wayward) ; (4) Epi-
leptic; (5) Inebriate (including drug habi-
tues); (6) Diseased (including the tubercul-
ous, the syphilitic, the leprous, and others
with chronic infectious and legally segreg-
able diseases); (7) Blind (including those
with seriously impaired vision) ; (8) Deaf
(including those with seriously impaired
hearing); (9) Deformed (including the
crippled); and (10) Dependent (including
orphans, ne'er-do-wells, the homeless,
tramps and paupers).
But it must not be thought that every
member of these classes of social inade-
quates is such because of defective heredity.
Only those individuals who-, after their cases
have been medically and socially diagnosed
and the factors of heredity and environment
duly analyzed, are shown to belong to their
particular inadequate groups primarily be-
because of defective heredity, are to be rated
as cacogenic. An individual who loses his
sight as the result of a gun-shot wound may
be of the greatest eugenical value to the
state. On the other hand, an individual,
though he may possess vision to a fair de-
gree, may carry in his germ-cells the deter-
miners for hereditary eye defect, so that if
the greatest interests of the race were to be
served, this individual would be denied the
right of reproduction. The same difference
persists throughout all of these groups.
Doubtless in the feeble-minded class the
factor of environment will be found to play
a relatively small part. In insanity, epi-
lepsy and deformity, it doubtless plays a
greater part, but the problem consists not
in weighing one class against another, but
in each particular case in determining the
hereditary factor and in diagnosing the
genetical properties of its possessor.
12. Common sense and pedigree study.
In the practical application of all sciences
to human affairs, common sense as well
as technical rules must be brought into play.
After all has been said and done, the eugen-
icist when gauging the hereditary qualities
of an individual, and applying the pedigree-
facts and the demonstrated rules of inherit-
ance to the particular case, must, besides
using the plainly demonstrated rules, use judg-
ment and common sense. The whole per-
sonality of the several members of the fam-
ily-tree rriust be gauged and the results of
such gauging must be applied in the final
estimate.
Dr. H. B. Webster, of Castine, Maine, in
depositing with the Eugenics Record Office
the pedigree-description * of a certain anti-
social family consisting of 77 members,
wrote:
"The data collected convinced me that
further progeny of this breed is undesirable.
In one instance (Pedigree Reference IV,
9), I have obtained consent to sterilization,
on eugenic as well as personal grounds.
This instance may help to combat the argu-
ment that sterilization of the defective is
necessarily a cruel and unjustifiable require-
ment to demand of them in return for the
protection and support which they obtain
either by public charity, or private benefi-
cence and tolerance.
"It is a sound eugenic tenet, that normal
persons owe a debt to the community that
can only be discharged by the breeding and
rearing of another generation as desirable
as themselves. Conversely, those defectives
who are practically certain to breed prin-
cipally defectives, owe a debt to the com-
munity that can be discharged only by an
adequate guarantee that they shall not con-
tribute to the next generation."
These .conclusions were based upon a
careful study of a compact family group —
grandparents, parents, uncles and aunts,
brothers and sisters, cousins, and children.
The investigator reviewed the life history
1 E. R. O. flies, V. C. 11, p. 1-28, Jan., 1916.
370
EuGENiCAi, Diagnosis
of each member of the group, and also made
an analysis of the natural traits of each. His
testimony concerning the "stock" repre-
sented by this particular family is therefore
worth considering.
Commonly the physician, in rating the
part that heredity is apt to play in causing
a given trait or disease to appear in a cer-
tain individual, counts the total number of
known kin of the patient, then counts the
number of such kin who are characterized
by the given trait, and divides the former
number in the latter to secure a percentage
or chance of incidence. According to the
laws of probability, his method throws some
light upon the situation, but it is not so
illuminating asl the method of the geneticist,
who applies the demonstrated laws of hered-
ity to the pedigree in an attempt to diagnose
the hereditary make-up of the particular
person. The method of the physician is val-
uable, but it by no means exhausts the re-
sources accessible in such cases. Life in-
surance is a sound business and a sound
science, and it is based upon chance of
occurrence calculated in much the same
manner that the physician calculates chance
of incidence. This soundness is, however,
based upon a wide margin of safety. If
similar rules are to be applied in eugenical
diagnosis, then the standard of cacogenesis
must be very low indeed. It can be raised
safely only by the application of genetical
analysis in addition to demographic per-
centages.
In the case of Alice Smith, who was the
subject of the test case of the eugenical
sterilization law in New Jersey, the student
in studying the pedigree-chart (see p. 392),
and who is acquainted with the general
principles of human heredity and of pedi-
gree-selection generally in plants and ani-
mals, would not here render a judgment
solely upon the basis of an exact and tech-
nical application of rules, although such ap-
plication could be made; but the final judg-
ment of degeneracy is rendered because of
the persistence throughout the pedigree
of degenerate human qualities from which
the race must purge itself, if it is to endure.
This particular person is one well toward
the lower end of the series, if one arranges
the personalities-complex of the American
people in order of social value. She is not
a borderline case presenting necessity for
niceties of differential diagnosis.
Thus it seems clear that, in selecting for
sterilization, the entire repertoire of heredi-
tary qualities must be rated as a whole. If
in the personalities of a majority of the
near kin of a degenerate propositus there is
a similar lack of natural value, it is, as
demonstrated by many pedigree-studies,
highly improbable that, in the absence of
out-mating, socially valuable natural quali-
ties would ever appear in the offspring of
the propositus.
It is pertinent here to make reference to
the experience of practical plant and animal
breeders. Those breeders who have been
most successful in improving their respec-
tive stocks have been idealists, but they
have also been noted as men of sound judg-
ment. They possessed, besides the ability
to rate the qualities of an individual, that
sound judgment which enabled them, by
pedigree-analyses, to estimate the breeding
qualities of selected individuals.
Similarly if the physician depended en-
tirely upon hard and fast rules in diagnosis
and treatment, doubtless his efforts would
be of but little practical use in treating
human disease. The ability to weigh symp-
toms and to exercise sound judgment and
common sense in diagnosis enables the phy-
sician to apply also those facts and prin-
ciples which medical science has so labor-
iously worked 'i>ut.
The eugenicist/in predicting the nature
of the hereditary triyts which a given indi-
vidual will pass on \f> his offspring, gains
efficiency by experience to the same degree
that the engineer or physician improves in
expertness with trsnning and experience.
The eiigenicist who has seen and analyzed
pedigrees of the particular trait or complex
of traits, which, he is called upon to diag-
nose eugenically in a given individual, stands
a much better chance of making a correct
diagnosis than does the analyst whose work
is based upon theory alone.
SUMMARY.
1. In the administration of the eugenical
sterilization laws, the task of the eugenicist
is not to diagnose an individual as insane,
feeble-minded, blind, or dependent — the
physician, the psychologist, and the social
worker do that— but it is to study the case-
history and records which the physician,
psychologist and social worker provide, and
then to secure, through the services of
trained eugenical field workers, the pedi-
gree and family histories of the persons al-
leged to be cacogenic, and finally, to deter-
mine, by applying the laws of heredity to
the pedigree-facts and family history rer
EuGfiNicAi, Diagnosis
371
ords, the quality of the traits of instinct, of
mentality, or of physical structure, which
the propositus will transmit within a definite
percent-ratio to his or her offspring. In
the eyes of the law the eugenicist is thus
called upon to perform the function of ex-
pert witness.
2. It devolves upon the courts of law to
apply, in particular cases, the determinations
of the eugenicist to the standards established
by the eugenical sterilization statutes.
3. The present low standards of eugeni-
cal adequacy, which characterize most of
the existing sterilization statutes, render the
determination of legal cacogenesis a task
well within the bounds of feasibility.
4. As in the limitaton of marriage on
account of hereditary degeneracy, so in
eugenical sterilization, the legal standards of
cacogenesis are very low. This is justified
because the determination of the exact line
between degeneracy and normality is very
difficult to ascertain. As the science of
eugenics advances, it will be possible, in keep-
ing with the assurance of justice and general
welfare, to raise both these legal and the
bioligical standards.
5. At present modern pedigree analysis,
as conducted by students of human hered-
ity, offers the most satisfactory method for
the definite determination of hereditary un-
fitness.
B. LIST OF CHARACTERS IN MAN
CLASSIFIED ACCORDING TO
THEIR METHOD OF INHERIT-
ANCE, AND LISTED REGARDLESS
OF THEIR PERSONAL OR RACIAL
VALUES. JANUARY 1, 1922.
In his constitutional make-up, man is a
composite of hereditary traits. On analysis
these traits are found to follow several dif-
ferent rules of inheritance. A few of these
rules have been determined and formulated.
Research continues, and slowly but surely
new methods of inheritance are being found
out, and additional specific qualities are
being shown to follow one or the other
method of transmission from parent to off-
spring.
It should here be emphasized that, in prac-
tical eugenical studies, those individuals who
are of so unworthy or degenerate a type as
to merit the denial of reproduction-, in the
mterests of race conservation, generally
show a number of specific traits which are
undesirable. In these cases, in addition to
demonstrating the possession of a specific
genetic unity selected from the degenerate
qualities of the accompanying list of good
and bad traits, the high incidence of genera!
shiftlessness, anti-social conduct and unedu-
cability in the family is evidence of a practi-
cal nature which must weigh very heavily
in determining potential parenthood of so-
cially inadequate offspring. Thus the gen-
eral social value of the "stock" from which
an individual springs is practical evidence
which, while not conclusive, cannot be ig-
nored in rating the potential parenthood of
socially inadequate offspring of a given per-
son.
Traits.
Most of the traits here listed are of
no concern in the practical application
of eugenical sterilization but they are of
immense importance as eugenical factors in
mate selection. It is not claimed that the
list here presented is exhaustive. In the
Trait Book (Bulletin No. 6 of the Eugenics
Record Office by Charles B. Davenport)
over 6,000 definite human qualities are named,
but the science of human genetics is still new
so that only a relatively few hereditary
human traits have been listed, and definite
rules of inheritance have been worked out
for still fewer.
There are four published tables or lists
of hereditary traits in man, recently com-
piled and classified on the basis of method
of inheritance.
They are:
(a) The Inheritance of Family Traits,
Chapter III, Heredity in Relation to Eugen-
ics, by Chas. B. Davenport, 1911.
(b) Mendelian Heredity in Man, by Major
C. C. Hurst, F. L. S., The Eugenics Review,
Vol. IV, April, 1912, pp. 1-15.
c) Mendelian Inheritance in Man, (p. 301-,
304, 2nd Ad.), Heredity and Environment in
the Development of Men, by Edwin Grant
Conklin, 1917.
(d) Inherited Characters in Man (table 33,
pp. 340-241. Genetics and Eugenics, by W.
E. Castle, 1916.
These lists have been drawn upon in pre-
paring the present tables, but in each case
credit has been given the source used. The
"name and page" in the accompanying
references refer to the titles just quoted, but
in most cases the references given are to the
source paper of the original investigator.
"Bui." refers to the Bulletins of the
Eugenics Record Office.
"Carnegie" refers to the publications of
the Carnegie Institution of Washington.
Credit is due Dr. Frederick L. Reichert,
Miss Alice M. Hellmer and Miss Mabel L.
Earle for assistance in compiling the accom-
panying revised lists.
372 EuGENicAi, Diagnosis
HUMAN TRAITS WHICH HAVE BEEN SHOWN TO FOLLOW DEFINITE
RULES OF INHERITANCE.
I Traits which Blend in the Fi Offspring 6
II. Traits which show Dominance or Reccssivcntss to the Normal Condition in the
Fi Offspring ; 68
ITI. Sex-Linked Traits 17
IV. Probably Mendelian, but Dominance Imperfect or Uncertain. 16
V. Clearly Hereditary, but Rules of Inheritance Uncertain 53
Total number listed to January 1, 1923 160
VI. Associated Traits 5 pairs
I. Traits which Blend in the Fi Ofifspring.
Reference
1. General body size Castle' (p. 240)
2. Stature Davenport (Bui. No. 18) E. R. O.'
3. Weight Castle (p. 240).
4. Black skin colort Davenport (Carnegie" No. 188)
5. Hair-form (round vs. flat in cross section)t Castle (p. 240)
6. Shape of head (round vs. long)t Castle (p. 240)
It is possible for such traits to ."^how segregation in subsequent generations, but it is
probable that a majority of blending traits in man are polygenic in nature, behaving like
the inheritance of skin-color in negro-white crosses.
II. Traits Showing Dominance of One Condition and Recessiveness of its Allelomorph
in the First (Fi) Generation of Offspring, and Segregation in the Second (F,) and
Subsequent Generations of Offspring.
DOMINANT
RECESSIVE
REFERENXE
]. Body size and shape
(a)
Achondroplasy
Normal size
Conklin* (p. 302)
(b)
Normal size
True dwarfs (i. e.
ateleiotic)
Conklin (p. 302)
2. Skeleton
(a)
Brachydactyly (i. e
digits and limbs)
short
Vormal condition
Mohr & Wriedt (Carnegie
No. 295)
(b)
Absence of distal ph;
danger
Vormal condition
Cragg & Drinkwater (Eng.
Jour. Gen., Vol. VI, 1916-
1917. pp. 81-89)
• (c)
Polydactyly (i. c.
digits )
cxtr?
\crmal condition
Rafl'le, .\. B. (Lancet 1914,
No. 187. 693-4)
(d)
Syndactyly (i. c.
fused
Normal condition
Parker, R. W., and Robin-
webbed or rcducid number
son, H. B., 1887. "A Case of
of digits)
Inherited Malformation of
the Hands and Feet" (pp.
181-18U)
(e)
Symphalangy (i. e.
fused
Normal condition
Gushing, H. (Gen. Vol. I,
joints of digits, or
ortho-
90-106, Jan. 1916)
dactyly)
t Method of Inheritance not agreed upon by all Investigators.
" Castle, W. E. Genetics and Eugenics, 1916.
« E. R. O. E'ugenlos Record Office.
» Publications of the Carnegie Institution of Washington.
•Conklin, E. G. Heredity and Environment (Revised Edition), 1916.
EuGENiCAL Diagnosis
373
DOMINANT
RECESSIVE
REFERENCE
(f) Exostoses (i. e. abnormal
Normal condition
Teissier, P., and Denechan,
outgrowths of long bones)
"Un cas d'exostoses osteo-
geniques multiples here-
didaires et familiales" (Pull,
et mem. soc. med. d'hop. de
Paris, 1905. 3s., XXII, pp.
647-650)
(g) Osteopsathyrosis (i. e. frag-
Normal condition
Atherton, A., 1894. "Case of
ility of bones)
Inherited Fragility of
Bones" (Dominion Med.
Monthly ii., pp. 1-3)
(h) Double-jointedness
Normal condition
Dobell, Horace, 1863. "A Con-
i ■ n' "''*
tribution to the Natural
n -■! :-^T
History of Hereditary
n — 'i'T^F^TT-
Transmission" (Med. Chir.
- n -■: — ■»t-tv
Trans. Lond. XLVI, pp. 35
- - ^ -,.- , ,._^.,^,
to 28)
(i) Radio-ulnar Synarthrosis
Normal condition
Davenport, Taylor, Nelson
(E. R. 0. Files)
(j) Head form:Brachycephaly
Dolichocephaly
Frets, G. P. "Heredity of
3. Countenance
Headform in Man,'' I93i
(a) Hapsburg lip
Normal
(pp. 59-61)
Woods, F. A. "Mental and
Moral Heredity in Royalty"
(pp. 187-189)
Coxe (Austria, 1820, Vol. I,
(b) Non-Jewish facial type
Tewish facial type
'p. 397)
Salaman (Jour. Genet., vol. L,
1910-1911, p. 273-292)
4. Skin
(Eug. Rev., vol. Ill, 1911-
(a) Pale thick skin
Colored thin skin
12, pp. 187-200)
(b) Brunet complexionf
Intermediate and blond
Hurst, C. C. (Eug. Rev., 1912-
13, vol. IV, p. 14)
Davenport, Chas B. (Am.
Naturalist, 1910, vol. XLIV,
pp. 641-673)
(c) Intermediatef
Blond complexion
Hurst, C. C. (Eug. Rev., vol.
TV, 1912, p. 13)
(d) Normal pigmentation
Albinism
Stelwagon' (p. 638)
(e) Spotted white (Vitiligo)
Uniformly colored
Stelwagon (p. 642)
(f) Tylosis palmae et plantae
Normal condition
Stelwagon (p. 555)
(g) Epidermolysis (i. e. ex-
Normal condition
Stelwagon (p. 400)
cessive formation of blisters)
(h) Congenital hypertrichosis
Normal condition
Stelwagon (p. 1013)
(i ) Hypotrichosis (i. e. hair-
Normal condition
Hyde, J. N. (Jour. Cut. Dis.,
lessness, associated with
1909, XXVII, pp. 6-7)
lack of teeth)
(j ) Immunity to Poison Ivyf
Susceptibility to Poison
Eugenics Record Office Files
(Rhus toxicodendron)
Ivy
(k) Ectodermal abnormalities
Normal condition
Fisher, H., University
(skin thickening, nail mark-
Skin Clinic, Koeln, Ger-
ing)
many (Dermat. Zeitschrift,
■' --r ■1»»l»)-r'T-
vol. XXXII, pp. 114-142)
t Method of inheritance not agreed upon by all InvestiKators.
•Stelwagon. Treatise on Diseases of the Skin. 1907. (8th Edition).
374
EuGENiCAL Diagnosis
DOMINANT
5. Hair
A. Color
(a) White forelock
(b) Dark brown
(c) Black
(d) Canities (i. e. patchy gray-
ing of hair)
B. Cross Section
(a) Curly (i. e. flat in cross
section)
(b) Beaded (i. e. cross section
not uniform, or "monile-
thrix")
(c) Digital hair
6. Eyes
(a) Front of iris pigmented (i.
e. brown or black eye)
(b) Hereditary cataract
(c) Glaucoma (internal pressure
and swelling of eye-ball)
(d) Ectopia lentis (displaced
lens)
(e) Retinitis pigmentosaf (i. c.
pigmentary degeneration of
the retina)
(f) Congenital Aphakia
(g) Congenital Ptosis
RECESSIVE
Normal (i. e. solid
color)
Light brown to "tow"
and light reds
AH other colors
Normal (i. e. solid
color)
Straight (i. e. round in
cross section)
Normal (i. e. uniform
cross section)
REFERENCE
7. Ears
(a) Normal condition
Absence
Only back of iris pig-
mented (blue eye)
Normal condition
Normal condition
Normal condition
Normal condition
Normal condition
Normal condition
Deaf-mutism
Miller, N. (Jour, of Hered.,
1915, vol. VI, pp. 165-169)
Conklin (p. 301)
Morgan (Brit. Med. Jour.,
1890, ii, p. 85)
Davenport, G. C. & C. B.
Heredity of Hair-form in
Man" (Am. Naturalist, 1908,
bs, XII, pp. 11-13)
Dtto. (pp. 138-139)
Danforth, C. H. (Am. Jour,
of Phys. Anthropology,
Sept. 1921)
Davenport, G. C. & C. B.
(Science, N. S. XXVI, 1907,
pp. 589-592
Nettleship, E., 1905. "One
Heredity in the Various
forms of Cataract" (Rep.
Roy. Lond. Ophth. Hosp.,
v. 16, p. 1)
Howe, L., 1887. "A Family
History of Blindness from
Glaucoma." (Arch. of
Ophth., N.Y., XVI, p. 72-76)
Lewis, G. G., 1904. "Hered-
itary Ectopia Lentis with
Report of Cases." (Arch, of
Ophthal. XXXIII, No. 3,
p. 275)
Nettleship, E., 1906. "On Re-
tinitis Pigmentosa and Al-
lied Diseases." (Rep. Roy.
Lond. Ophth. Hosp., v. IT,
pts. I, II and III.)
Jones, Ralph R., Toms River,
N. J. (E. R. O. files)
Briggs, H. H. (Tr. Am. Oph.
See. 1918, XVI, pp. 255-276)
Oph. Soc. 1918, XVI, pp.
255-276
(Also Am. Jour, of Ophth,
1919, 3s, ii, pp. 308-417)
St. Hilaire, E., 1900. (La sur-
dimutite)
Politzer, A., 1907. (Geschichte
der Ohrenheilkunde)
t Method of inheritance not agreed upon by all Investigators.
EuGENiCAL Diagnosis
375
DOMINANT
(b) Normal condition
RECESSIVE
Otosclerosis
8. Intellectual capacityf
(a) Average
(b) Average
9. Temperament
(a) Feebly - inhibited (Hyper-
kinetic)
10. Special talents
(a) Non-musical
(b) Non-artistic
11. Right-handedness
13. Nervous system
(a) Huntington's Chorea
(b) Muscular atrophy (i. e. pro-
grassive neural muscular
atrophy)
(c) Normal condition
(d) Normal condition
Ce) Normal condition
Very great ("genius")
Very small (see also
" Nervous System)
Over-inhibited (Hypo-
kinetic)
(f) Normal condition
(g) Normal condition
(h) Normal condition
(i) Normal condition
(j) Normal condition
(k) Normal condition
(1) Normal condition
REFERENCE
Musical
Artistic
Left-handedness (and
ambidexterityt)
Normal condition
Normal condition
Idiopathic epilepsy
Constitutional feeble-
mindedness
Manic depressive insan-
ity
Dementia praecox
Paranoia
Involutional melan-
cholia
Alcoholism
Hysteria
Friedrich's ataxia
Meniere's disease
Lucae, A., 1907, "Die Chroni-
sche Progressive Schwer-
hoerigkeit"
Hammerschlag, V., 1905, "Zur
Frage der Vererbbarkeit
der Otosklerose"
Conklin (p. 301)
Conklin (p. 301)
Kraepelin, 1899, "Psychiatry."
Raecke, 1903, "Transitorische
Bewusstseinsstorungen der
Epileptiker"
Ribot, T., 1896. "The Psycho-
logy of the Emotions"
Stanton, H. M. "Inheritance
of Specific Musical Capaci-
ties" (E. R. O. Bui. No. 22,
1922)
Hurst, C. C. (Eug. Rev., vol.
IV, 1913, p. 23)
Drinkwater (Eng. Journal
of Genetics, vol. V, 1915-16,
pp. 229-241
Hurst, C. C. (Eug. Rev., vol.
IV, 1912-13, p. 16)
Davenport (E. R, O. Bui.
^No. 17)
Charcot and Marie (Rev. de
Med., Paris, 1886, VI, pp.
97-138)
Turner, W. Aldren "Epilepsy"
(1907)
Rosanoff and Martin (Jour.
Hered. 1915, vol. VI, pp.
34-35
Rosanoff & Orr. "A Study of
Heredity in Insanity in the
Light of the Mendelian
Theory" (Am. Jour, of In-
sanity, LXVIII, pp. 321 to
261)
Also E. R. O. Bui. No. 5
Rosanoff and Martin (Jour.
Hered. 1915, vol. VI, pp.
355-356)
Conklin (p. 303)
Osier' (p. 1096)
Osier' (p. 944)
Simon, Chas. E.. (Johns Hop-
kins Hosp. Bui. No. 4, 1893,
pp. 83-84)
t Method of Inheritance not agreed upon by all investigators.
1 Osier, "Wm. Principles and Practice of Mediome.
376
EuGENiCAL Diagnosis
DOMINANT
RECESSIVE
REFERENCE
(m) Normal condition
Sydenham's chorea (St.
Jolly, F., 1891 (Neurol. Cen-
Vitus' dance)
tralbl., Leipzig, X, 331-326)
(n) Normal condition
Thomson's disease (lack
of muscular tone)
Osier (p. 1131)
13.
Kidneys
(a) Diabetes insipidus
Normal condition
Osier (p. 439)
(b) Diabetes mellitus
Normal condition
Williams, John R. "A Study
of the Significance of
Heredity and Infection in
Diabetes Mellitus" (Amer.
Jour, of Med. Science, N. S.,
vol. CLIV. pp. 396-406)
(c) Normal condition
Alkaptonuria (urine
dark after oxidation)
Osier (p. 692)
14.
Respiratory System
(a) Normal condition
Bronchial asthma
June Adkinson (Eugenics Re-
search Ass'n, 1919)
15.
Palmaris Longus Muscle
Absence
16.
Teeth
Absence
Hunt, Harrison R., Univer-
(a) Lateral permanent incisors
sity of Miss. (E. R. 0.
files)
III. Sex-Linked Traits.
These traits or qualities are "dominant in males and recessive in females.''
REFERENCE
1.
Coloboma
De Beck, D., 1886, "A Rare Family
History of Congenital Coloboma"
(Arch, of Ophth. XV, p. 8, and 1894,
XXIII, p. 264)
2.
Atrophy of optic ner-ve (neuritis optica)t
Davenport" (p. 110)
3.
Myopia
Oswald, A. B., "Hereditary Tendency
to Defective Eyesight" (Brit. Med.
Jour. Jan. 1911)
I -1
Worth, C, "Hereditary Influence in
Myopia" (1905, Trans. Ophth. See.
Lond., XXVI, pp. 141-143)
4.
Color blindness ("Daltonism," inability
to
Reber, W.. 1895, "Six Instances of
distinguish red from green)
Color Blind Women" (Med. News,
XVI, pp. 95-97)
5.
Night blindness (Inability to see by faint
Nettleship, E. (Ophth. Soc. Trans, v.
light)
2T. p. 269-293)
6.
Nystagmus
Clarke, Ernest, 1903, "Hereditary Nys-
tagmus," Ophthalmoscope (Lond. I,
pp. 86-87)
7.
Ichthyosis (scaly skin)t
Stelwagon (p. 596)
Crocker (Dis. of the Skin, 3rd Ed.,
p. 569)
8.
Pattern baldness
Osborn, D. (Jour. Hered., Aug. 1916)
i).
Multiple sclerosis (Differential degeneration
Merzbacher, L., 1909, "Gesetzmassig-
of the nerve tissue)
keiten in der Vererbung und Ver-
breitung Verschiedener Familiarer
Erkrankungen" (Arch. f. Rassen und
Ges. Biologic, VI, pp. 172-198)
t Method of Inheritance not agreed upon by all investlgrators
^ Davenport, C. B. Heredity In Relation to Eugenics, 1911.
EuGENiCAL Diagnosis
377
10.
11.
12.
13.
14.
15.
16.
17.
Gower's muscular atrophy (dystrophia muscu-
laris progressiva)
Hemophilia
Wanderlust
Deficiency in sense of smellf
Thalassophilia (sea-lust)
Toothlessness (toothless man of India)
Webbed toes
Microphthalmia
REFERENCE
Osier (p. 933)
Osier (pp. 755-756)
Davenport "Feebly-Inhibited, 11" (Car-
negie No. 236)
Glaser (Science, Dec. 27, 1918, pp,
647-648)
Davenport and Scudder (Carnegie No.
259)
Thadami (Jour, of Heredity, vol. XII,
Feb. 1921, pp. 87-88)
Richard Schofield (Jour. Hered., Nov.
1920)
Ash (Brit. Med. Jour. Lond., Apr. 8,
1922)
IV. Probably Mendelian, but Dominance Imperfect or Uncertain.
Defective hair and teeth
Extra teeth
Double set of permanent teeth
Harelip and cleft palate
Cryptorchism
Hypospadias
7. Twining trait (possibly recessive)
8. Dental agnesia (absence of certain teeth)
9. Bi-lobed ear
10. Dent in forehead (possibly dominant)
11. Human protein sensitization
13. Digital anarthrosis
13. Iso-agglutinins (as figured in blood-grouping)
14. The "Catlin mark"
15. Ankylosis (stiffening of joints)
16. Degeneracy of Cornea
Castle (p. 241)
Davenport (p. 143)
Davenport (p. 142)
Blades (Dental Cosmos, Nov. 1914),
vol. LVI, pp. 1241-1345
Davenport (p. 170)
Lingard, A., 1884, "The Hereditary
Transmission of Hypospadias and its
Transmission by Indirect Atavism"
Wakeley, Thomas, 1895, "The Influence
of Inheritance on the Tendency to
have Twins"
Sergi, S. (Jour. Hered. v. V, 1914,
p. 559)
Schofield, R. (Jour. Hered. v. VIII,
1917, p. 517)
Davenport (Jour. Hered., April 1915,
vol. VI, pp. 163-164)
Cooke & Vander Veer (Jour. Immuno-
logy, vol. I, June 1916, pp. 201-305)
Drinkwater, H. (Proc. Roy. Soc. Med.,
1916-1917, vol. X, pp. 60-68)
Reichert, F. L. (Eng. News, June 1933,
pp. 65-67)
Von Dungern & Hirschfeld (Zeitsch. f.
Immunitatsforsch., vol. VIII, 1911,
p. 526)
Goldsmith, W. M. (Jour, of Hered.,
1933, vol. XIII, No. 2, pp. 69-71)
E. R. O. Files
Davenport (pp. 112-113)
V. Clearly Hereditary (i. e. Runs in Families), But Rule of Inheritance Uncertain.
Longevity
Handclasp
E. R. O. Files
Hurst, C. C, (Eug. Rev., vol. IV, 1913,
pp. 1-17)
■Ill
378
EuGENicAi, Diagnosis
3. Diatheses to many specific diseases, as:-
(a) Pneumonia
(b) Cancer
(c) Abdominal hernia
(d) Inguinal hernia
4. Stuttering or stammering
5. Chlorosis
6. Epistaxis (nosebleed)
7. Telangiectasis
Splenic anemia with enlargement of the spleen
(Gaucher's splenomegaly)
9. Gout
10. Goitre
11. Exophthalmic goitre (Graves' disease)
12. Literary ability
13. Mathematical ability
14. Mechanical ability
15. Cretinism
16. Heart defect
17.
18.
19.
30.
21.
28.
23.
24.
25.
26.
Pernicious anaemia
Arteriosclerosis
Jaundice (hereditary form, splenomegaly with
acholuric jaundice)
Migraine
Rheumatism
Von Recklinghausen's disease (neurofibro-
matosis)
Scoliosis
Raynaud's disease
Angio-neurotic oedema (Quincke's disease)
Milroy's disease (persistent hereditary oede-
nia of the legs)
REFERENCE
Herrman, Chas. (Arch. Ped., vol.
XXXIII, 1916, pp. 168-170)
Jour. Med. Research, vol. XXXII, 1915
(N. S. vol. XXVII), pp. 159-200
Couch, J. K., 1895, "A Family History
of Hernia"
Davenport (p. 106)
Osier (p. 730)
Lane (Jour. Hercd. 1916, vol. VII, pp.
133-134)
Weber, F. P., 1907, "Multiple Hered-
itary Developmental Angiomata (Te-
langiectasis)"
Bovaird, D., 1900, "Primary Splenome-
galy" (Am. Jour. Med. Sci., vol.
CXX, pp. 377-402)
Wilson, E., 1869 (Jour. Cutan Med.
Lond. Ill, pp. 106-117)
Garrod^ A. E., 1902, "The Incidence of
Alkaptonuria"
Buschan, G., 1894, "Die Basedow'sche
Krankheit"
J. A. M. A. (Jan. 24, 1920, p. 286)
Davenport (p. 54)
Davenport (p. 59)
Davenport (pp. 55-58)
Eug. Rev., vol. II, 1910-1911, pp. 142-
143, and Jordan, D. S. (Eug. Rev.,
vol. II, pp. 247-248)
Vierordt, K.H., 1901, "Die angeborenen
Herzkrankheiten" (Spezielle Patho-
logic und Therapie, XV, T. I, Ab. 2)
Warfield' (p. 158)
Osier (p. 887)
Osier (p. 1087)
Apert, E., 1907, "Traite des maladies
familiales et des maladies congeni-
tales" (p. 235)
Cheadle, W. B., 1900, "Occasional Lec-
tures on the Practice of Medicine"
Arnozan, X„ et L, Prioleau 1883, "An-
nales de Dermat. et de Syph." (2s.,
iv, pp. 689-698)
Blumer, C, 1892, "Hereditare Neigung
zu Traumatischer Blasenbildung"
(Arch. f. Dermat. und Syph. 1893,
pp. 105-70)
Davenport (pp. 172-173).
Jour. Hered. IX, 1918, p. 130
Edgeworth, F. H. (Lancet, 1911, pp.
216-217)
' Warfleld, IjOuIs M. Arteriosclerosis and Hypertension (3rd Edition).
EuGENiCAiv Diagnosis
379
27. Mongolian imbecility (possibly recessive)
28. Amaurotic family idiocy
29. Megalophthalmus
30. Progressive Central Muscular Atrophy (in-
fantile form, familial)
31. Hereditary spastic paraslegia
32. Marie's cerebellar hereditary ataxia
33. Paroxysmal familial paralysis
34. Hereditary tremor
35. Handwriting
36. Degeneration of macula lutea
37. Arthritis deformans
38. Spasmodic croup
39. Hereditary icterus
40. Angina pectoris
41. Cystinuria
42. General paralysis
43. Hay fever
44. Hypertrophic emphysema
45. Leprosy
46. Myxoedema
47. Neurasthenia
48. Obesity
49. Paramyoclonus multiplex
50. Periodical paralysis
51. Hereditary finger-print pattern
REFERENCE
52. Memory
53. Astigmatism
54. Congenital Dislocation of Thigh-bone
Jour. Hered., vol. IX, 1918, p. 23
Herrman, C. (Arch. Ped., vol. XXXIV,
1915, pp. 494-503)
Herrman, C. (Arch. Ped., vol. XXXII,
1915, pp. 902-908)
Davenport (p. 115)
Osier (p. 928)
Osier (pp. 938-939)
Osier (p. 945)
Taylor, E. W. (Jour. Nerv. and Ment.
Dis. 1898, vol. XXV, p. 637)
Osier (p. 1119)
Osier (p. 1066)
Davenport (p. 63)
Blue, Robert (J. A. M. A. 1919, vol.
L'XXIII, pp. 1328-1331
Osier (p. 1134)
Osier (pp. 557-558)
Osier (p. 837)
Osier (p. 690)
Osier (p. 922)
Osier (p. 612)
Osier (p. 646)
Osier (p. 152)
Osier (p. 875)
Osier (p. 1107)
Osier (p. 451)
Osier (p. 1133)
Osier (p. 1119)
Wilder, H. H. (Palm and Sole Studies
Biol. Bui. 1916, vol. XXX, pp. 135-
172, 211-252)
Elderton, E. M. (Biometrika, Oct.
1930, pp. 57-91)
Davenport (pp. 59-60)
E. R. O. Files
ISfareth 1903, "Beitrage zur Luxatio
coxde congenitalis"
380 EuGENiCAi, Diagnosis
VI. Associated Traits (Possibly Chromosome-Linkage).
ONE TRAIT
ASSOCIATED
TRAITS
REFERENCE
1.
Brachydactylism
Shortness of
stature
Drinkwater (Eng. Journal
Genetics 1916-17, vol. VT,
p. 88)
3.
Osteopsathyrosis
Porcelain-blue color
of
Herrman, C, 1915, "Blue
sclera or '
whites
of
Seleirosis 1 Associated with
eyes'"
Brittle Bones"
Cockayne, E. A., 1914, "Case
of Hereditary Blue Scler-
osis and Brittle Bones''
(Proc. Roy. Soc. Med., VII,
No. 6, p. 101)
3.
Hereditary nail defects
Hair defects
Nicolle, C, and A. Halipre,
1895, "Maladie familiale
caracterisee par des alte-
rations des cheveux et des
ongles" (Ann. de Derm, et
Syph., Vr, pp. 804-811)
4.
Niglit Blindness
Myopia Strabismus
Nettleship, E., 1907, "History
of Congenital Stationary
Night-blindness" (Ophthal.
Soc. Trans., vol. 27, pp. 269
to 293)
5.
Feeble-mindedness
Epilepsy
Davenport (pp. 73-76)
EuGENicAi< Diagnosis
381
Type a. In case the defect is recessive, as in many types of manic-depressive in
sanity, dementia praecox, and feeble-mindedness.
The Propositus.
(Individual aflfected
personally or in re-
Possible Mates
Offspring
Remarks
productive, qualities)
Germ-
Person-
Germ-
Person-
Germ-
Person-
cells -
ality
cells
ality
cells
ality
a Nr
Normal
1 NN
Normal
^50% NN
Normal
Depending upon, the
(Simplex)
(Duplex)
(Duplex)
^ 50% Nr
V(Simplex)
Norma!
nature of the co-
narent, none, 25%, or
50% of the offspring
2 Nr
Normal
-^35% NN
Norma!
of the propositus will
(Simplex)
(Duplex)
J 50% Nr
j (Simplex)
35% rr
^(Nulliplex)
Normal
Affected
be affected.
If the 3 possible
types of matings were
equally frequent and
fertile, 75% of the off-
3 rr
Affected
^ 50% Nr
Normal
spring would be nor-
(Nulliplex)
j (Simplex)
] 50% rr
^(Nulliplex)
Affected
mal and 35% affected.
b rr
Affected
1 NN
Normal
100% Nr
Normal
Diepending( upon the
(Nulliplex)
(Duplex)
(Simplex)
nature ' of the co-
parent, none, 50%, or
3 Nr
Normal
/- 50% Nr
Normal
100i% of the offspring
(Simplex)
(Simplex)
] 50% rr
^(Nulliplex)
Affected
of the propositus will
be affected.
If the 3 possible
types of matings were
3 rr
Affected
100% rr
Affected
equally frequent and
(Nulliplex)
(Nulliplex)
fertile, half of the off-
spring would be nor-
mal and half affected.
TABLES SHOWING THE TYPES' OF MATINGS WHICH MAY BE MADE
BY PERSONS INDIVIDUALLY DEGENERATE^ FROM HEREDITARY
CAUSES, OR PERSONALLY NORMAL BUT CARRYING DEGENERATE
GERMINAL QUALITIES, SHOWING ALSO THE PERSONAL AND
GERMINAL NATURES OF THE POSSIBLE OFFSPRING OF EACH SUCH
MATING, WORKED OUT IN ACCORDANCE WITH THE KNOWN LAWS
OF HEREDITY.
^ There ar^ here worked out only a, few of the known methods of inheritance, but these
given comprise the fundamental cases.
' There is no essential difference between the methods of inheritance per se of desirable
and undesirable traits.
382
EuGENiCAi, Diagnosis
Type b. In case the defect is dominant, as in Huntington's chorea, or some of the
types of congenital cataract.
The Propositus.
(Individual affected
.
personally or in re-
Possible Mates
Offspring
Remarks
productive qualities)
Germ-
Person-
Germ-
Person-
Germ-
Person-
cells
ality
cells
ality
cells
ality
a DD
Affected
1 DD
Affected
1007o DD
Affected
Regardless of the
(Duplex)
(Duplex)
(Duplex)
nature of the co-
2 Dn
Affected
^50% DD
Affected
parent, all of the off-
(Simplex;)
j (Duplex)
"j 50% Dn
I (Simplex)
Affected
spring of the propo-
situs vi'ill be affected.
3 nn
Normal
100% Dn
Affected
(Nulliplex)
(Simplex)
b Dn
Affected
1 DD
Affected
^50% DD
Affected
Depending upon, the
(Simplex)
(Duplex)
j (Duplex)
i 50^% Dn
L (Simplex)
Affected
nature of the co-
parent, all, 75%, or
50% of the offspring
of the propositus will
3 Dn
Affected
^25% DD
Affected
be affected. But in no
(Simplex)
(Duplex)
50% Dn
1 (Simplex)
25% nn
^(Nulliplex)
Affected
Normal
type of mating will
less than 50% of the
offspring be affected.
If the 3 possible
types of mating were
equally frequent and
3 nn
Normal
f 50% Dn
Affected
fertile, T5% of the off-
(Nulliplex)
(Simplex)
^ 50% nn
Normal
spring would be af-
fected and 25% not
I (Nulliplex)
affected.
NOTE:— Besides the system of nomenclature here given (which was devised by
Dr. Charles B. Davenport) the other system (Professor William Bateson) in vogue has
Its equivalents as follows: homozygous, if por-itive, is equivalent to duplex; homozygous,
if negative, is equivalent to nulliplex: heterozygous is equivalent to simplex.
NOTE; — The six Mendelian cases are:
Mating Offspring
DDX DD = JO0%DD
DD X Dr = 50% DD -f- 50% Dr
DD X rr = 100% Dr
Dr X Dr = 25% DD -f- 50% Dr + )ir,% rr
Dr X rr = 50% -|- 50% rr
rr X rr = 100% rr.
A letter stands for a determiner for a given trait, in the germ-cell. Personally DD
and Dr individuals possess the dominant aspect of the trait in question. DD "breeds
true," but Dr does not. An rr individual shows the recessive aspect of the trait, and
"breeds true."
1.
2.
3.
4.
5.
6.
EuGENiCAL Diagnosis
383
Type c. A Sex-Linked Trait. (In man the male is the heterozygous sex.)
A trait that is dominant in males but recessive in females, as Haemophilia or Color-
blindness.
Propositus
(Individual af-
Offspring
fected person-
Possible
Mates
Remark*:
ally or in re-
A.Wf AXaCAA ^^u
productive
Males 50%
Females 50%
qualities)
1. Male
HH (Female)
Ho (100%
HH (100%
Depending upon the germ-
(a) Ho
(Afifected)
affected)
affected)
inal nature of the co-parent,
(Affected)
either all, half, or none of the
possible offspring will be af-
Hh (Female)
Ho (50%
HH (50%
fected. In no case will there
(Not afifected)
affected)
affected)
be any difference between the
per cent of affected and not
ho (50%
Hh (50%
affected in the two sexes of
not affected)
not affected)
the offspring.
If the 3 possible types of
mating were equally frequen'
hh (Female)
ho (100%
Hh (100%
and fertile, 50% of the off-
(Not affected)
not affected)
not affected)
spring would be affected and
50% not affected, classifica-
tion not based on sex.
Depending upon the germ-
2. Female
Ho (Male)
Ho (100%
HH (100%
inal nature of the co-parent,
(b) HH
(Affected)
affected)
affected)
either all of the offspring or
(Affected)
all of the males and half of
ho (Male)
Ho (100%*
Hh (50%
the females will be affected.
(Not affected)
affected)
not affected)
Ho (50%
affected)
If the 2 possible types of
mating were equally frequent
and fertile, 87^% of the off-
spring would be affected and
ISyifo nof affected, classifica-
tion not based on sex.
(c) Hh
Ho (Male)
Ho (50%
HH (50%
Depending upon the germ-
(Not
(Affected)
affected)
affected)
inal nature of the co-parent.
affected)
ho (50%
Hh (50%
either half of the males and
not affected)
not affected)
half the females will be of-
fected and half not affected,
or half the males will be af-
ho (Male)
Ho (50%
Hh (50%
fected and half not affected,
(Not affected)
affec'ed)
not affected)
and none of the females will
be affected.
•
ho (50%
hh (50%
If the 3 possible types of
not affected)
not affected)
mating were equally frequent
and fertile, 37^% will be af
fected and 62^% not affected,
classification not based on sex
NOTE: — The typical sex-linked cases are:
1. Xy5 X XX5 =50%XyS -|-50%XX?.
3. Xy5 X XX$ =25%Xy3 + 25% Xy^ -|- 25% XX 9
25% XX 9.
384
EuGENiCAL Diagnosis
All Xy individual is a. male unmarked by the trait in question. Xy is a male marked
by the trait. XX is a female "untainted" by the trait. XX is a female who, while not
showing the trait personally, will pass it on to one half of her sons and will "taint" one
half of her daughters.
Type d. A trait that blends.
Propositus
(Individual af-
fected person-
ally or in re-
productive
qualities)
Possible
Mates
1. Nr
Affected to a
small degree
2. rr
Affected to a
great degree
NN
Nr
NN
Nr
Offspring
NN 50% not affected
Nr 50% slightly affected
NN 25% not affected
Nr 50% slightly affected
rr 25% greatly affected
Nr 50% slightly affected
rr 50% greatly affected
n ' ■ ''-:' \ ■
Nr 100% slight affected
Nr 50% slightly affected
rr 50% greatly affected
rr 100% greatly affected
Remarks
Depending upon the germinal nature
of the co-parent, either half of the possible
offspring will be normal and half affected;
or 25% will be normal, 50% only slightly
affected, and 25% greatly affected; or 50%
greatly affected and 50% slightly affected.
If the 3 possible types of matings were
equally frequent and fertile, 25% of the
offspring would be normal, 50% slightly
affected, and 25% greatly affected.
Depending upon the germinal nature
of the co-parent, either all of the possible
offspring will be slightly affected, or 50%
will be slightly affected and 50% greatly
affected, or all will be greatly affected.
If the 3 possible types of matings were
equally frequent and fertile, 50% would
be slightly affected and the other 509?
greatly affected.
EuGENiCAL Diagnosis
385
e. A Composite Trait.' A trait which is a composite of two or more independently
inherited traits.
In this particular example the composite is composed of one dominant and one
recessive trait. For example, if a complex of Huntington's chorea (dominant) and
manic depressive insanity (recessive), which are independently inherited, made up a
medical entity (which in fact they do not), the rule of inheritance of such entity would
be as follows:
Propositus^
(Individual carrying the trait either personal-
ly or in the germ-plasm.)
(a) CCnn (Affected)
(b) CC Nn (Not affected)
(c) CC NN (Not affected)
(d) Ccnn (Affected)
(e) CcNn (Not affected)
(f) CcNN (Not affected)
(g) CC nn (Not affected)
(h) cc Nn (Not affected)
(i) ccNN (Not affected)
Remarks
Average frequency of types in offspring.
provided that there is equal frequency and
fertility of matings with all possible types
of mates.
50% affected
50% not affected
35% affected
75% not affected
100% not affected
.37^'%
6254%
81^%
affected
not affected
affected
not affected
100% not affected
25%
75%
12J4%
87J4%
affected
not affected
affected
not affected
100% not affected
See the following tables for the working out of each of these cases.
• In this complex only two unit-traits are Involved; if, as is probably the case in many
characters, a larger number enter, it is at once evident that the situation becomes highly
Involved and consequently the possibility of analysis becomes Increasingly difficult.
''C=gene for Huntington's cho^fea; c=Its Absence. N=!gene not capable of developing
manic depressive insanity; m=gene for manic depressive insanity.
386
EuGENiCAL Diagnosis
(a)
Propositus
Possible Mates
Offspring
Remarks
CCnn
CCnn
CC nn
(100% affected)
Depending upon the
(affected)
(affected)
germinal nature of the
CCNn
CCnn
(50% affected)
co-parent, the offspring
(not affected)
CCNn
(50% not affected
will be either affected
or not affected.
CCNN
CCNn
(100% not affected)
If the nine possible
(not affected)
types of matings were
Cc nn
CCnn
(50% affected)
equally frequent and
(affected)
Cc nn
(50% affected)
fertile, 50% would be
affected and 50% would
CCnn
(25% affected)
be not affected.
CcNn
Cc nn
(25% affected)
(not affected)
CCNn
Cc Nn
(25% not affected)
(25% not affected)
CcNN
CCNn
(50% not affected)
(not affected)
Cc Nn
(50% not affected)
ccnn
Cc nn
(100% affected)
(not affected)
cc Nn
Cc nn
(50% affected)
(not affected)
Cc Nn
(50% not affected)
ccNN
(not affected)
Cc Nn
(100% not affected)
(b)
CCNn
CCnn
CCnn
(50% affected)
Depending upon the
(not affected)
(affected)
CCNn
(50% not affected)
germinal nature of the
co-parent, the offspring
CCNn
(not affected)
CCNN
(25% not affected)
will be either affected
CCNn
(50% not affected)
or not affected.
CC nn
(25%, affected)
If the nine possible
types of matings were
CCNN
CCNn
(50% not affected)
equally frequent and
(not affected)
CCNN
(50% not affected)
fertile, 25% of the off-
spring would be af-
CCnu
(25% affected)
fected and 75% would
Cc nn
CCNn
(25% not affected)
be not affected.
(affected)
Cc nn
Cc Nn
CCNn
Cc Nn
(257r affected)
(25'"/; not affected)
(25'/, noraffected)
(25% not affected)
CcNn
CCNN
(12}^% not affected)
(not affected)
Cc NN
CCnn
(I2y2% not affected)
(125/^% affected)
Cc nn
(12^% affected)
JiuGENiCAi, Diagnosis
(b) — ^Continued
387
Propositus
Possible Mates
Offspring
Remarks
CcNN
CC Nn {25% not affected)
(not affected)
CC NN (35% not affected)
Cc Nn (25% not affected)
Cc NN (25% not affected)
cc nn
Cc Nn (50% not affected)
(not affected)
Cc nn (50% affected)
cc Nn
Cc NN (35% not affected)
(not affected)
Cc Nn (50% not affected)
Cc nn (35% affected)
ccNN
Cc Nn (50% not affected)
(not affected)
Cc NN (50% not affected)
(c)
CCNN
CC nn
CCNn (100% not affected)
None of the offspring
(not affectedt
(affected)
will be affected, no mat-
CCNn
CC Nn (50% not affected)
ter what the character
(not affected)
CC NN (50% not affected)
of the mating, because
the propositus carries
CCNN
CC NN (100% not affected)
no determiner for the n
(not affected)
(recessive) trait.
Cc nn
CC Nn (50% not affected)
(affected)
Cc Nn (50% not affected)
CC Nn (25% not affected)
CcNn
CCNN (25% not affected)
(not affected)
Cc NN (25% not affected)
Cc Nn (25% not affected)
CcNN
CCNN (50% not affected)
(not affected)
Cc NN (50% not affected)
cc nn
Cc Nn (100% not affected)
(not affected)
cc Nn
Cc Nn (50% not affected)
(not affected)
Cc NN (50% not affected)
ccNN
Cc NN (100% not affected)
(not affected)
(d)
Cc nn
CCnn
CCnn (50% affected")
Depending upon the
(affected)
(affected)
Cc nn (50% affected)
germinal nature of the
co-parent, the offspring
CCnn (35% affected)
will range from all af-
CCNn
CC Nn (35% not affected)
fected to all not af-
(not affected)
Cc nn (25% not affected)
Cc Nn (35%. not affected)
fected.
388
EuGENiCAi, Diagnosis
(d) — Continued
Propositus
Possible Mates
CCNN
^(not affected)
Cc nn
(affected)
CcNn
(not affected)
CcNN
(not affected)
r
cc nn
(not affected)
ccNn
(not affected)
ccNN
(not affected)
Offspring
CCNn
Cc Nn
tCnn
Cc nn
cc nn
CCNn
Cc Nn
cc Nn
CCnn
Cc nn
cc nn
CCNn
Cc Nn
cc Nn
Cc nn
cc nn
Cc Nn
cc Nn
Cc nn
cc nn
Cc Nn
cc Nn
50% not affected)
50% not affected)
25% affected)
50% affected)
25% not affected)
12^% not affected)
25% not affected)
12^% not affected)
12J^% affected)
25% affected)
12^% not affected)
25% not affected)
50% not affected)
25% not affected)
50% affected)
50% not affected)
25% not affected)
25% not affected)
25% affected)
25% not affected)
50% not affected)
50% not affected)
Remarks
If the nine possible
types of matings were
equally frequent and
fertile, 375^% of the
offspring would be af-
fected and 62J^% would
be not affected.
(e)
CcNn
(not affected)
CCnn
(affected)
CCNn
(not affected)
CCNN
(not affected)
Cc nn
(affected)
CCnn
Cc nn
CCNn
Cc Nn
CCNn
Cc Nn
CCNN
CcNN
CC nn
Cc nn
CCNN
CCNn
Cc NN
Cc Nn
CCNn
Cc Nn
cc Nn
CC nn
Cc nn
cc nn
25% affected)
25% affected)
25% not affected)
25% not affected)
25% nbt affected)
25% not affected)
12^%> not affected)
12^% not affected)
12^% affected)
125^%, affected)
25% not affected)
25% not affected)
257r not affected)
25% not affected)
12J^% not affected)
25% not affected)
12j47f) not affected)
12H% affected)
25% affected)
n'/2% not affected)
Depending upon the
germinal nature of the
co-parent, the offspring
will be both affected
and not affected.
If the nine possible
types of matings were
equally frequent and
fertile, 18.75% of the
possible offspring, or
slightly less than one-
fifth, would be affected,
and 81.25% would be
not affected.
Eugunical Diagnosis
(e) — Continued
389
Propositus
Possible Mates
CcNn
(not affected)
CcNN
(not affected)
cc nn
(not affected)
cc Nn
(not affected)
ccNN
(not affected)
Offspring
CC NN (6J4% not affected)
CC Nn (1254% not affected)
CCnn (614% affected)
Cc NN (I2y2% not affected)
Cc Nn (25% not affected)
Cc nn (12^% affected)
cc NN (654% not affected)
cc Nn (12J47p not affected)
cc nn (6J4% not affected)
CC NN (12K% not affected^
CCNn (12H% not affected)
Cc NN (25% not affected)
Cc Nn (25% not affected)
cc NN (12^% not affected)
cc Nn (121^% not affected)
Cc nn (25% affected)
Cc Nn (25% not affected)
cc nn (25% not affected)
cc Nn (25% not affected)
Cc nn (12;^% affected)
Cc Nn (25% not affected)
Cc NN (12^% not affected)
cc nn (12^% not affected)
cc Nn (25% not affected)
cc NN (1214% not affected)
Cc Nn (25% not affected)
Cc NN (25% not affected)
cc Nn (25% not affected)
cc NN (25% not affected)
Remarks
(f)
CcNN
CCnn
CCNn (50% not affected)
None of the possible
(not affected)
(affected)
Cc Nn (50% not affected)
offspring of any mat-
ings made by an in-
CC Nn (35% not affected)
dividual of this type
CCNn
CC NN (25% not affected)
will be affected.
(not affected)
Cc Nn (35% not affected)
Cc NN (25% not affected)
CCNN
CC NN (50% not affected)
(not affected)
Cc NN (50% not affected)
CC Nn (25% not affected)
Cc nn
Cc Nn (50% not affected)
(affected)
cc Nn (25% not affected)
390
EuGENicAi, Diagnosis
(f) — Continued
Propositus
Possible Mates
Offspring
Remarks
CCNn (13^% not affected)
CC NN (13J^% not affected)
CcNn
Cc Nn (35% not affected)
(not affected)
Cc NN (35% no taffected)
cc Nn (12^% not affected)
cc NN (131^% not affected)
CcNN
CCNN (25% not affected)
(not affected)
Cc NN (50% not affected)
cc NN (35% not affected)
cc nn
Cc Nn (50% not affected)
(not affected)
cc Nn (50% not affected)
Cc Nn (35% not affected)
cc Nn
cc Nn (25% not affected)
(not affected)
Cc NN (25% not affected)
cc NN (25% not affected)
ccNN
Cc NN (50% not affected)
(not affected)
cc NN (50% not affected)
(g)
ccnn
CCnn
Cc
nn
(100% affected)
Expending upon the
(not affected)
(affected)
germinal nature of the
CCNn
Cc
nn
(50% affected)
co-parent the offspring
(not affected)
Cc
Nn
(50% not affected)
will be either affected
or not affected.
CCNN
Cc
Nn
(100% not affected)
If the nine possible
(not affected)
types of matings were
Cc nn
Cc
nn
(50% affected)
equally frequent and
(affected)
cc
nn
(50% not affected)
fertile, 25% of the off-
spring would be affected
Cc
nn
(25% affected)
and 75% would be not
CcNn
Cc
Nn
(25% not affected)
affected.
(not affected)
cc
nn
(25% not affected)
cc
Nn
(25% not affected)
CcNN
Cc
Nn
(50% not affected)
(not affected)
cc
Nn
(50% not affected)
cc nn
cc
nn
(100% not affected)
(not affected)
cc Nn
cc
Nn
(50% not affected)
(not affected)
cc
nn
(50% not affected)
ccNN
cc
Nn
(100% not affected)
(not affected)
EuGENiCAi, Diagnosis
(h)
391
Propositus
cc Nn
(not affected)
Possible Mates
CC nn
(affected)
CCNn
(not affected)
CCNN
(not affected)
Cc nn
(affected)
CcXn
(not affected)
CcNN
(not affected")
cc nn
(not affected")
cc Nn
(not affected)
cc NN
(not affected)
ccNN
(not affected)
CC nn
(affected)
CCNn
(not affected)
CCNN
(not affected)
Conn
(affected)
Offspring
Cc nn (50% affected)
Cc Nn (50% not affected")
Cc nn (25% affected)
Cc Nn (50% not affected)
Cc NN (25% not affected)
Cc Nn (50% not affected")
Cc NN (50% not affected)
Cc nn (25% affected)
Cc Nn (35% not affected)
cc nn (25% not affected)
cc Nn (25% not affected)
Cc NN (121'^% not affected)
Cc Nn (25% not affected")
Cc nn (12J4% affected)
cc NN (12H% not affected)
cc Nn (25% not affected)
cc nn (1254% not affected)
Cc Nn (25% not affected)
Cc NN (25% not affected)
cc Nn (25% not affected)
cc NN (25% not affected)
cc Nn (50% not affected)
cc nn (50% not affected)
cc nn (25% not affected)
cc Nn (50% not affected)
cc NN (25% not affected)
cc Nn (50% not affected)
cc NN (50% not affected)
Remarks
Depending upon the
germinal nature of the
co-parent, the offspring
will be either affected
or not affected.
If the nine possible
types of niatings were
equally frequent and
fertile, 12^% of the off-
spring would be affected
and S7;4% would be
not affected.
(i)
Cc Nn (100% not affected)
Cc Nn (50% not affected)
Cc NN (50% not affected)
Cc NN (100% not affected)
Cc Nn (50% not affected)
cc Nn (50% not affected")
Regardless of the
character of the mating,
none of the offspring
will be affected, because
the propositus carries
no determiner for the
n (recessive) trait, that
is in any case his deter-
miner N (Dominant)
will be present in the
392
EuGENiCAi, Diagnosis
(i) — Continued
Propositus
Possible Mates
CcNn
(not affected)
CcNN
(not affected)
cc nn
(not affected)
cc Nn
(not affected)
ccNN
(not affected)
Offspring
Cc Nn (35% not affected)
Cc NN (35% not affected)
cc Nn (25% not affected)
cc NN (35% not affected)
Cc NN (50% not affected)
cc NN (50% not affected)
cc Nn (100% not affected)
cc Nn (50% not affected)
cc NN (50% not affected)
cc NN (100% not affected)
Remarks
offspring and thus de-
stroy the possibility of
an nn individual.
D. REFERENCES
1. Research Institutions.
1. Eugenics Record OfSce, C. B. Davenport, Director; Bulletins on the inherit-
ance of special traits; Memoirs describing cacogenic families; Reports,
Family History Schedules, etc., Cold Spring Harbor, Long Island. N. Y.
2. Galton Laboratory for National Eugenics, Karl Pearson, Director. Uni-
versity of London, publications for sale by Dulau & Co., Ltd.. London.
3. Societies.
American Genetic Association, David Fairchild, President. Research
Departments for Plants, Animals, and Eugenics, Washington, D. C.
Eugenics Research Association, L. F. Barker, President, H. H. Laughlin,
Sec'y, Cold Spring Harbor, Long Island, N. Y.
Eugenics Education Society, Leonard Darwin, President, London, England,
(and several branches). 11 Lincoln's Inn Fields, \\'. C. 2. London,
Mrs. A. C. Gotto, Hon. Secretary.
Societe Fran^aise d'Eugenique, Lucien March, President, 97 Quai d'Orsay,
Paris. France.
Deutsche Gesellschaft fiir Rassen-Hygiene, Dr. .Alfred Ploetz, Gundelinden-
strasse 5, Miinchen, Germany.
Argentine Eugenics Committee, Buenos Aires, Argentina.
Sociedade Eugcnica de Sao Paulo, Brazil, Dr. Renato Kehl, Secretary, Rua
Libero Badaro 119.
Galton Society, Hew York, N. Y., Charles B. Davenport, President.
Hungarian Eugenics Society, Dr. Geza von Hoffman, Acting Vice-President,
Budapest.
Italian Society of Genetics and Eugenics, Dr. Ernest Pestalozza, President,
Rome, Italy, Prof. Cesare Artom, Hon. Sec'y, Via Scipioni 273
Race Preservation League, University of Melbourne, Victoria, AustraHa.
Laboratorium f. Kemi & Racehygiene, Kristiania-Winderen, Norway, Dr.
Ton Alfred Mj^cn,
Eugenics Education Society of New South Wales, \3C, Upper Spit Road,
Mosraan, Sydney, Australia.
Eugenic Education Society of New -Zealand, Dunedin, N. Z.
National Committee for Mental Hygiene, Inc., Dr. Thomas W. Salmon.
Medical Director, 50 Union Square, New York, N. Y.
Race Betterment Foundation and Eugenics Registry, Dr. John Harvey
Kellogg, President, Battle Creek, Mich.
Eugenicai, Diagnosis
393
Societe beige d'Eugenique, Albert Govaerts, Secretary, Maison des Medicins,
17 Grand'place, Bruxelles, Belgium.
International Eugenics Commission, Major Leonard Darwin, Chairman, Dr.
Albert Govaerts, Secretary, Brussels, Belgium.
3. Universities and colleges which offer especially active courses in Eugenics and
Genetics. ~
Columbia University, New York, N. Y.
Harvard University, Cambridge, Mass.
Princeton University, Princeton, N. J.
Brown University, Providence, Rhode Island.
University of California, Berkeley, Cal.
University of Pennsylvania, Philadelphia, Pa.
University of Michigan, Ann Harbor, Mich.
University of Chicago, Chicago, 111.
University of Illinois, Urbana, 111.
University of Kansas, Lawrence, Kans.
University of Iowa, Iowa City, Iowa.
University of Ohio, Columbus, Ohio.
Southwestern College, Winfield, Kans.
N. C. State College of Agriculture and Engineering, Raleigh. N. C.
Wilmington College, Wilmington, Ohio.
4. Custodial institutions for various types of socially inadequate, which are conducting
active field studies in eugenics.
Name of Institution
Kings Park State Hospital, Kings Park, N. Y.
State Village for Epileptics, Skillman, N. J.
State Hospital, Warren, Pa.
Danvers State Hospital, Hathorne, Mass.
Whittier State School, Whittier, Cal.
Monson State Hospital, Palmer, Mass.
Middletown State Hospital, Middletown, Conn.
Home for Feeble-minded and Epileptic, Lapeer, Mich.
Government Hospital for the Insane, Washington
Taunton State Hospital, Taunton, Mass.
Boston State Hospital, Boston, Mass.
School for Feeble-minded and Colony for Epileptics, Fari-
bault, Minn.
State Institution, Polk, Pa.
Letchworth Village, Thiells, N. Y.
Eastern Pennsylvania State Institution for Feeble-minded and
Epileptic, Pennhurst. Pa.
Central Islip State Hospital
Bangor State Hospital
Girls Training School, Gainesville. Texas
Sleighton Farm (Girls Department), Darling, Pa.
Northern Hospital for Insane, Logansport, Ind.
Southeastern Hospital for Insane, Madison, Ind.
Indiana Girls School, Indianapolis, Ind.
Clinton Farms, N. J. State Reformatory for Women, Clinton,
N.J.
Norwich State Hospital, Norwich, Conn.
State Industrial School for Girls, Lancaster, Mass.
California State Commission in Lunacy, Sacramento, Cal.
Phipps Psychiatric Clinic, Baltimore, Md.
Superintendent or Director
W. C. Garvin
David F. Weeks
H. W, Mitchell
Geo. M. Kline
Fred C. Nelles
Everett Flood
Floyd Haviland
H. A. Haynes
Wm. A. White
Arthur V. Goss
J. V. May
G. C. Hanna
J. M. Murdock
Charles S. Little
Oscar E. Thomson
G. A. Smith
Carl J. Hedin
Carrie W. Smith
M. P. Falconer
Fred W. Terflingei
J. W. Milligan
Kenosha Sessions
May Caughey
Henry M. Pollock
Amy F. Everall
Dr. F. W. Hatch
Dr \dolf Meyer
394 EuGENiCAt Diagnosis
5. Courts of law which have undertaken scientific eugenical studies as an aid to their
functions in determining the cases of personal conduct and in weighing and
placing responsibilities.
Municipal Court of Chicago. Hon. Harry Olson, Chief Justice.
Dr. Wm. J. Hickson, Director of
the Psychopathic Laboratory.
6. Journals.
Archiv fiir Rassen- und Gesellschafts-Biologie, A. Ploetz, Editor, published by
B. G. Teubner, Leipzig and Berlin, Germany.
The Eugenics Review, a quarterly journal, published by the Eugenics Education
Society, London; Hon. Secretary, Mrs. A. C. Gotto.
Eugenical News, a monthly periodical on eugenics, published by the Eugenics
Record Office, Cold Spring Harbor, Long Island, N. Y.
Journal of Heredity, a monthly journal, published by the American Genetic
Association, Washington. Oliver Olson, Acting Editor.
Journal of Genetics, a quarterly publication of the University of Cambridge
Press. W. Bateson and R. C. Punnett, Editors.
Journal of the American Medical Association, Chicago, III. This weekly pub-
lication reports abstracts of many of the best original papers on human
heredity and eugenics.
Mental Hygiene, a quarterly publication of the National Committee for Mental
Hygiene, Inc., 50 Union Square, New York.
Genetics, bimonthly journal, Geo. H. Schull, Princeton University, Editor,
published by Williams & Wilkins Co., Baltimore.
Revue d'Eugenique, quarterly review of the Societe Beige d'Eugenique, Palais
d'Egmont, Maison des Medecins, Bruxelles, Belgium.
Eugenique, publication of the Societe Frangaise d'Eugenique, published by
Librairie J. B. Bailliere et Fils, 19, Rue Hautefeuille, Paris.
7. Books.
Heredity in Relation to Eugenics, by C. B. Davenport, Henry Holt & Company
New York.
Eugenics and Heredity, by Coulter, Castle. Tower and Davenport. University
of Chicago Press, Chicago.
Essays in Eugenics, by Francis Galton, Eugenics Education Society, London.
English Men of Science, by Francis Galton, Eugenics Education Society,
London.
Inquiries into Human Faculty and its Development, by Francis Galton. E. P.
Dutton, New York.
Hereditary Genius, by Francis Galton, Maamillan Company. Xew York.
Natural Inheritance, by Francis Galton, Macmillan Company, N. Y.
Applied Eugenics, by Paul Popcnoe and R. H. Johnson, Macmillan Company.
N. Y.
Ancient Eugenics, by A. G. Roper, B. H. Blackwell Company, London.
Heredity in Royalty, by F. A. Woods, Henry Holt & Company, New York.
The Influence of Monarchs, by F. A. Woods, Henrv Holt & Company, New
York.
The Human Harvest, by David Starr Jordan, .American Unitarian Association,
Boston.
Is, Mankind Advancing? by Mrs. John Martin, Baker & Taylor Companv, New
York.
The Social Direction of Human Evolution, by W. F. Kellicott, D. Appleton &
Company, New York.
The Declining Birth Rate, by Arthur Newsholmc, Moffatt, Yard & Company,
New York.-.
Race Suicide, by M. S. Iseman, The Cosmopolitan Press, New York.
The Jukes, by R. L. Dugdale, G. P. Putman & Company, New York.
The Jukes, 1915, by A. H. Estabrook, Carnegie Institution of Washington.
Jukes-Edwards, by A. E. Winship, R. L. Myers & Co., Harrisburg.
EUGENICAI, DlAGHOSIS 395
The Kallikak Family, by H. H. Goddard, Macmillan Company, Ne\\- York.
The Hill Folk, Report on a rural community of hereditary defectives, by Florence
H. Danielson and Charles B. Davenport. Eugenics Record Office Memoir
No. 1.
The Nam Family. A Study in Cacogenics. Arthur H. Estabrook and Charles
B. Davenport. Eugenics Record Office Memoir No. 2.
The Dack Family, by Mrs. Anna Wendt Finlayson. Eugenics Record Office
Bulletin No. 15.
Psychiatry, by Stewart Paton. J. B. Lippincott.
Human Behavior, by Stewart Paton, Charles Scribner's Sons.
Signs of Sanity, by Stewart Paton, Charles Scribner's Sons.
Manual of Psychiatry, by A. J. RosanofiF, John A. Wiley & Sons.
Textbook of Nervous Diseases, by Charles L. Dana, William Wood and Com-
pany.
Feeble-mindedness, Its Causes and Consequences, by H. H. Goddard, Macmil-
lan Company, New York.
Mental Deficiency (Amentia), by A. F. Tredgold, Bailliers, Tindall & Cox,
London.
A Point Scale for Measuring Mental Ability, by Yerkes, Bridges and Hardwick,
Warwick & York, Baltimore.
Physical Basis of Heredity, by T. H. Morgan, J. B. Lippincott.
Mendel's Principles of Heredity, by W. Bateson, The Cambridge University
Press. New York.
The Cell in Development and Inheritance, by Edmund S. Wilson, Macmillan
Company, New York.
Genetics: An Introduction to the Study of Heredity, by H. E. Walter, Mac-
millan Company, New York.
Heredity, by W. E. Castle, D. Appleton & Company, New York.
Heredity and Sex, by T. H. Morgan, Macmillan Company, New York.
Heredity and Environment, by Edwin G. Conklin, Princeton University Press.
The Direction of Human Evolution, by Edwin G. Conklin, Charles Scribner's
Sons.
How to Make a Eugenical Family Study, by Charles B. Davenport and Harry
H. Laughlin, Eugenics Record Office Bulletin No. 13.
Readings in Evolution, Genetics and Eugenics, by H. H. Newman, University
of Chicago Press.
The Trend of the Race, by S. J. Holmes, Harcourt, Brace & Co., New York.
Statistical Directory of State Institutions for the Defective, Dependent and
Delinquent Classes, by H. H. Laughlin, Bureau of the Census, Washington,
D. C.
Institutional Care of the Insane in the United States and Canada (in four
volumes), by Hurd, Drewry, Dewey, Pilgrim, Blumer and Burgess, John
Hopkins Press
Summaries of State Laws Relating to the Insane, prepared by John Koren.
revised by S. W. Hamilton and Roy Haber, National Committee for Mental
Hygiene, Inc., New York.
Summaries of State Laws Relating to the Feeble-minded and the Epileptic,
prepared by Samuel W. Hamilton and Roy Haber, National Committee for
Mental Hygiene, Inc. New York.
Race Decadence, by Wm. S Sadler, A. C. McClurg & Co., Chicago
•Reports and scientific papers of the International Congresses of Eugenics.
1st Congress, London, 1912. Problems in Eugenics, 2 vol. Description of
the Exhibit.
2nd Congress, New York, 1921. Eugenics, Genetics and the Family.
Eugenics in Race and State. Description of the Exhibit.
CHAPTER XII.
THE ANATOMICAL AND SURGICAL ASPECTS OF EUGENICAL
STERILIZATION.
Section A. Anatomy. Description of the Human Male and Female Re-
productive Mechanisms and an Explanation of their Functions 397
a. Reproductive mechanism of the human male 398
b. Reproductive mechanism of the human female 402
Section B. Surgery. The principal types of surgical operations used in effect-
ing sexual sterilization 406
1. Male 407
(1) Phallo-orchidectomy 407
(3) Phallectomy 407
(3) Castration (orchidectomy) 409
(4) Spermectomy 410
(5) Vasectomy 410
(6) Ligation of the vas deferens 411
(7) X-ray treatment 412
8. Female 414
(1) Pan-hystero-kolpectomy 414
(2) Hystero-salpingo-oophorectomy 414
(3) Oophoro-hysterectomy 414
(4) Hysterectomy 414
(5) Salpingo-oophorectomy ". 415
(6) Oophorectomy (ovariectomy, ovariotomy, castration, spaying) 415
(7) Curetting or cauterizing the intrauterine tubal openings 416
(8) Salpingectomy 419
(9) Ligation of Fallopian tubes 421
(10) X-ray treatment 421
Summary 422
a. Types of eugenical sterilization available 422
1. For the male 422
a. For the female 422
b. Future methods , 422
c. Weighing the matter of type of eugenical sterilization in relation to
eugenical policy 423
Note : Continence and Contraception 423
Anatomical and Surgical Aspects
397
THE ANATOMICAL AND SURGICAL
ASPECTS OF EUGENICAL STER-
ILIZATION.
SECTION A. DESCRIPTION OF THE
HUMAN MALE AND FEMALE
MECHANISMS OF REPRODUC-
TION, AND AN EXPLANATION OF
THEIR FUNCTIONS.
The internal organs of reproduction and,
ultimately, the mature ova and spermatozoa,
develop from the mesoderm. In embryonic
development the first evidence of the indif-
ferent sex-gland is found in the genital
ridges which first appear at about the fifth
week as small elevations of thickened cells
on the Wolffian bodies. In course of devel-
opment the mesothelial cells overlying the
genital ridges proliferate and, at about the
sixth or seventh week, by which time they
comprise a tissue of several layers, begin
to penetrate the tissue of the ridge. This
penetrating tissue is called the germinal
epithelium because it ultimately gives rise
to the germinal cells or gametes, the ova or
spermatozoa, as the case may be. Later,
portions of the penetrating germinal epithel-
ium become transformed into structures
called the sex-cords, each of which includes
a number of cells destined to develop into
gametes.
From the sex-cord or egg column in the
female germ-gland there bud off a number
of parts, each of which develops into a
Graafian follicle. Each of these follicles con-
tains a cell destined ultimately to become
the mature egg. In the testis the sex-cords
undergo a change in which part of the tissue
breaks away, leaving other portions which
ultimately become the seminiferous tubules,
the inner lining of which gives rise to the
sex-cells which, during sexual maturity, de-
velop into spermatozoa.
Until the fourth or fifth week in embryonic
life the sex-gland is indifferent, but at this
time the embryologist can distinguish the
ovary and the testis from each other. It is,
however, not until the ninth week of intra-
uterine life that the external genitals begin
to show distinction.
Embryologically there is a close homology
throughout the reproductive systems of the
two sexes, although in mature life the analo-
gous functions are not always performed by
homologous structures. The following table '
shows this homology of structure:
HOMOLOGIES OF THE SEXUAL SYSTEM.
FETAL STRUCTURE
FEMALE OiRGANS
MALE ORGANS
Indifferent sexual gland
Ovary
Testis
Wolffian body-
Its middle series of tubules
Short tubules of parovarium
Vasa efferentia, rete testis and
and
and
coni vasculosi
Corresponding part of Wolf-
Horizontal or long tube or
Tube of epididymis
fian duct
parovarium
Remainder of Wolffian duct
Usually altogether disappears;
Vas deferens, seminal vesicle,
if persistent, Gartner's duct
and ejaculatory duct
Upper series of short tubules
Stalked hydatid of Morgagni
Stalked hydatid of Morgagni
(pronephros)
Lower series of tubules
Paroophoron
Paradidymis (organ of Gi-
raldes)
Duct of Miiller—
Its upper extremity
Fimbria of oviduct
Sessile hydatid
Succeeding portion
Oviduct
Usually disappears; if per-
sistent, duct of Rathke
Remaining portion, by fusion
Uterus and vagina
Uterus masculinus
with its ifellow
^ Heisler, John Clement: Text-book of Embryology, p. 263.
delphla, 1907.
W. B. Saunders Co., PJilla-
398
Anatomical and Surgical Aspects
EXTERNAL ORGANS.
FETAL STRUCTURE
FEMALE ORGANS
MALE ORGANS
Genital eminence
Clitoris
Penis
Genital folds
Nymphae and bulbi vestibuli
Corpus spongiosum, enclosing
spongy part of urethra
Genital ridge
Labia majora
Scrotum
Urogenital sinus
Urethra and vestibule, Glands
Prostatic urethra, membran
of Bartholin
ous urethra, prostate, Cow-
per's glands
Epididymis
tjrethra
'Convoluted tubules in which
spcnnulozoa arc manufactured
Figure i. Schematic Representation of Genital Tract in ihc Male
(a) The Reproductive Mechanism of the
Human Male.
The essential purpose of the genital sys-
tem of the male is the manufarturc, storage
and delivery of functioning spermatozoa.
This function begins with puberty and con-
tinues until late in life.
The germ-tract. The spermatozoa are
produced by indirect cell-division from a
layer of cubical cells lining the basement
membrane of the seminiferous tubules of the
testes. The mature spermatozoa pass from
the seminiferous tubules in which they are
manufactured to the epididymis, which
«rves as a first storage-reservoir. Thence
they may pass through the vas deferens to
a second storage-reservoir called the seminal
vesicle (or they may shunt this storage);
thence accompanied by seinen. through the
cjaculatory duct into the urethra, and thence
to the outside' During the transit oi, from
ten to twenty feet from the place of origin
to the outside, the spermatozoa are moved
along the earlier stretches of their course by
the ciliary action of the lining of the gerin-
tract, during which time the spermatozoon
has not yet reached maturity. From the
seminal vesicles it is driven by ejaculation,
which is caused by contraction of the mus-
culature of the vasa deferentia, the ejaculat-
WW"
Anatomtcai, and Surgical Aspects
399
ory ducts, the seminal vesicles and the pros-
tate gland. The semen is secreted in most
part by the testes, the prostate, the seminal
vesicles and Cowper's glands. It is a viscid,
opalescent and alkaline fluid, and contains
about ten percent of solid matter. Its whit-
ish appearance is due to the presence of
spermatozoa. The purpose of the fiuid is
to maintain the vitality of the spermatozo.i,
and to convey them in their course along
the seminal passages.
The Testes. The testes are a pair of
glandular structures, grayish-white in color,
dividuals, but the average dimension is from
one and a half to two inches in length, one
inch in breadth, and a trifle more in thick-
ness. The weight varies from twenty-five
to thirty grams. According to different au-
thorities, each testis contains from two
hundred to four hundred lobules or com-
partments. Each lobule contains several (one
to three or more) seminiferous tubules.
Thus in each testis there are six or eight
hundred of the latter. Each tubule measures
from one hundred and forty to two hundred
fi in diameter, and when straightened out
Fibrous band
(remains of peritoneal sac)'
Vas deferens
Fibrous coal and fibers
of cremaster muscle
Tunica vaginalis
— Epididymis
-Testis
Figure 2. The Testis and Its Coverings
and resilient in consistency. The testis is
suspended in the scrotum by a spermatic
cord. Generally the left testis hangs some-
what lower than the right.
The spei:matic cord consists of the vas
deferens, blood vessels, nerves, and the liga-
ment of Cloquet, the whole held together by
connective tissue suspending the testis, and
furnishing the latter gland its blood and
nerve supply, and finally conveying from it
the mature .spermatozoa.
In size the testes vary greatly with in-
is about two feet long. At one end each of
these tubules terminates blindly, but at the
apex of the lobules they unite to form the
short tubuli recti, which anastomose into the
rate testis, which in turn branches into the
vasa efJerentia, of which there are from
twelve to fifteen, each about one third of an
inch in length. These tubules lead directly
into the globus major of the epididymis. The
latter structure is a much convoluted canal
from fifteen to twenty feet long. The coil
is held together by connective tissue.
400
Anatomical and Surgical Aspects
The Vas Deferens. The vas deferens is a
tubular continuation of the epididymis. It
is a cord-Hke duct aljout two feet in length
if unravelled. Its lower stretches are con-
torted, but its upper portion is straight. It
measures about three millimeters in external
diameter, and its canal about live-tenths of
a millimeter. Its walls have three coats —
an outer fibrous, a middle of smooth mus-
cular tissue, and an inner longitudinally
folded mucus membrane.
s-ac is pyramidal in shape andjjn the average
measures about two inches in length and
one-half inch in breadth at the base.
The ejaculatory duct is formed by the
junction of the duct leading from the sem-
inal vesicle, with the vasa deferens, and is
about three-fourths of an inch in length.
The ejaculatory duct from each testis emp-
ties into the urethra.
The Spermatozoon. Leeuwenhoek, the in-
Spcmatic artery !
Vas deferens *
Veins -^
('plexus pampinifonnis)
— ^remaslcric artery
Epididymis
Testis
Figure 3. The Structure of the Spermatic Cord
The Seminal Vesicles. The seminal ves-
icles are a pair of membranous structures
which branch off from the vasa deferentia.
Their function is to serve as storage reser-
voirs for the surplus semen and spermatozoa,
Each vesicle is a single tube, about live
inches long and one-lifth inch in diameter,
doubled on itself. They vary greatly in size
and shape in different individuals, but each
ventor of the microscope, and his pupil
Hamm, discovered the spermatozoon in 1677.
Thence arose a school of biologists known
as animalculists, who held the spermatozoon
to be a complete organism in miniature.
Their opponents were known as the ovists,
who held that the egg contained the germ.
According to these two doctrines, the theory
of preformation was a sound one. It was
Anatomical and Surgical Aspects
401
also very simple, because development
would, if it were proved, be simply a process
of unfolding. In 17,'j!l Wolff announced tbe
doctrine of epigenesis, which holds that the
germ is unorganized, and that the union of
male and female materials is essential to re-
production. The ovists were considerably
reinforced in argument when in 17(13 Honnet
published the results of his work on partho-
genesis. Now we know that both sperm and
egg are essential to bi-sexual reproduction,
that each is highly organized, and that, espe-
cially in the contribution of hereditary genes,
the egg and the sperm are practically equiv-
alent. J I i
The spermatozoon is a highly specialized
and very active single cell. Its chromosomes
carry the genes for the traits transmitted by
heredity, the tail drives the organism along
the seminal passages in the male, and after
coitus, to the place of fertilization, gener-
ally ' in the Fallopian tube of the female.
The perforator enables the sperm to enter
the egg in the process of fertilization. Ob-
servers report the rate of progress of the
spermatozoon to be from one and one-tenth
millimeters to three and sixth-tenths milli-
meters per minute, and estimate that the
time required for passage from the upper
part of the vagina to the upper part of the
Skin
Dartos^
Inlercolumnar fascia
Cremasteric fascia..
Infundibuliform fascia— -
A lobule of the testis ---
Visceral tunica vaginalis—
PaifSral tunica vaginalis
Epididymis
Vasa efferentia
Vas deferens
■with its artery
Spermatic artery"
figure 4- A Sectional View of the Testis
The spermatozoon is a single cell which
in its gross aspect consists of a head or a
nucleus, and a vibratory whip-like tail; but
a more refined linear division is that into
head, neck, body and tail The human
spermatozoa are small compared to those
of many other mammals. On the average
in man they measure ' a total length of from
51 to 58 M, to which length the head
contributes 4 to 0 /i, and the tail 41 to
53 ij.. The width of the head is from 3 to
4 fi. The head is oval, but viewed in pro-
file appears pear-shaped. At the tip of the
head there is a shield of m.odified substance
called the head-cap, or perforator. Chemical
analysis shows the head to be rich in nucleic
acid, and the tail high in proteins and fats.
Structurally the tail, which by its vibratory
motion serves as a propeller, consists of an
axial filament surrounded by a shield of
protoplasm.
Fallopian tube is about one and one-half
hours.
The peculiar chemical composition of the
semen serves the purpose of maintaining the
vitality and motility of the spermatozoa.
Under proper environment conditions, such
as the female genital tract, the spermatozoa
maintain their vitality and motility for a
number of days. Comparison with other
species of animals throws considerable light
upon this problem. The queen bee is fertil-
ized but once in her entire life. The turkey
hen is said to be fertilized but once a season.
The female bat receives the male in the fall,
but ovulation and fertilization do not take
place until spring.
The number of spermatozoa produced in
the life-time of a single human male is very
J Reference Handbook of the Medical
•Sciences, .Vol. VII, p. 822.
2 J. P. MoMurrich: The Development of the
Human Body, p. 34.
402
Anatomical and Surgical Aspects
great. It has been found that "one cubic
miUimeter of human ejaculate contains
60,876 spermatozoa, a single ejaculate, there-
fore, containing over 200,000,000. This
would indicate that during his lifetime a
man may produce 340 billions spermatozoa
(Lode)."' Since in each testis there is a
total of seven or eight hundred linear feet of
seminiferous tubules, in the two testes there
are on the average appro.ximately fifteen
hundred feet of tubes of 140 /i to 200 /x in
caliber, which are lined with spermatozoa-
bearing epithelium (Hill).
science of heredity to study progeny result-
ing from crossing of differently constituted
individuals and thereby to learn the rules
governing the segregation and recombina-
tion of natural traits. The ancestral cells
of all spermatozoa and ova have continued
in unbroken descent from the germinal cells
of the ancestors of the particular individual
possessing them. These cells are especially
important because they carry within their
walls the whole hereditary endowment of
their possessors, and consequently inter-
ference in human reproduction in the inter-
a.c=Anterior centrosome g.c.=Cap
a.f=Axial filainent n.=Nuclcus
c.p.=:Connecting piece nk.=Neck
sh.p.=Chicr piece p.=Proloplasm
p.c.=Poslerior cenlrosome
Figure 5. The Development of a Human Spermatozoon
The process of spermatogenesis is closely
analogous to the maturation of the ovum.
In each case the ancestral germinal cells
are prepared for union by a process of re-
duction, as a result of which there remains
in the mature germ-cell (ovum or spermato-
zoon) only one-half the number of chromo-
somes characteristic of the cells of the body
tissues of the individual which produces the
particular gamete. However, in normal re-
production, these chromosomes represent all
of the essential characteristics of the species.
Thus, an individual who is the product of
the union of two such gametes possesses
twice over all the essential characteristics
of the race. And thus the difference in the
repertoire of non-essentials permits the
csts of eugenics is centered upon these par-
ticular cellular units.
(b) The Reproductive Mechanism of the
Human Female.
In the human species more duties are per-
formed by the genital mechanism of the fe-
male than by that of the male. In the fe-
male, not only must the mature germ-cell
(ovum) be produced and delivered to the
place of fertilization in the Fallopian tube
or uterus, but the uterus must implant the
zygote or fertilized egg and nourish it until
the fetus is ready for birth. By the process
of parturition, the female mechanism must
'J. P. McMurrich: The Development of the
Human Body, p. 19.
Anatomicai, and Surgical Aspkcts
403
deliver the child, and finally by the secre-
tions of the mammary glands, the mother
must further nourish the child for a number
of months.
The Germ-tract. The ova are developed
tion must intervene) is discharged from each
ovary every twenty-eight days during the re-
productive period. Upon being thus dis-
charged, the ova are set free in the body
cavity near the funnel-chaped openings of the
t^-i/
- Pari of lube excised in salpingcclomy'
Vagina '
Figure 6. Schematic Representation of the Genital Tract in the Female
in the cortex of the ovaries. Tiie cortex
comprises that part of the ovary which over-
lies the central or medullary portion. Ova
are discharged from the Gra.-ilian follicles,
which are imbedded in the cortex, by the
rupture of the surface (a process known as
ovulation). This process is variable and peri-
odical, but as a rule one ovum (as yet not
ready for fertilization; the process of matura-
Fallopian tubes, each of which openings is
provided with vibratory cilia. These cilia set
up currents from the body fluids which direct
the free but non-motile ovum into the tube,
whence it is carried by ciliary action the
entire length of this duct to its final place
of fertilization near the end of the tube or
in the cavity of the uterus. Ova, if not
fertilized, soon degenerate, but those which
Ligament of ovary^
I
Mesovarium ;
Mesosalpinx 1 [
Isthmus of tube
Ampulla^
Fundus
Abdominal oriflce
Fallopian tube
Ligament of ovary
^Round ligament
of uterus
Neck of uterus
-•-Exiernolos (or opening)
of uterujs
Figure 7. The Ovary, Fallopian Ttibe and Uterus in Place
404
Anatomical and Surgical Aspects
unite with the spermatozoa immediately l)e-
gin active development.
The union of the spermatozoon and ovum
is believed to take place usually in the I'^al-
lopian tube, whence the fertilized ovum, or
zygote, as it is now called, normally migrates
to the cavity of the uterus, where it becomes
implanted. Under normal conditions, only
one spermatozoon penetrates the egg or
ovum; others may be present in great num-
bers, but they eventually perish. There is
thought to be a chemical affinity between the
unfertilized ovum and the spermatozoon; at
any rate they are brought together by phy-
sical or chemical agencies. Immediately
after fertilization, a reaction appears to
establish a resistance to the penetration of
long, three-fourths inch broad, and one-half
inch thick. Each ovary is held in place by
a suspensory ligament, which is a peritoneal
fold, and by the ovarian ligament, which
attaches it to the uterus. It is also steadied
by the Fallopian tube. Its cortex, or outer
portion, contains a number of Graafian fol-
licles, each of which carries a potential ovum.
These follicles vary in size with age and de-
gree of development, from one-sixth inch in
diameter when about ready to deliver the
ovum, down to the size of pin-head, thence
smaller, and finally below the range of the
vision of the naked eye. As a Graafian follicle
develops, the growing ovum which it contains
is surrounded by small cells, and this mass,
which fills only a small portion of the fol-
Outer covering of ovary
Graafian follicles
in various stages
of development
Corpus luteum-
Early stages of Graafian
follicles lying near surface
- Blood vessels
Stroma
Figure 8. A Diagrainiiwtic Section of the Human Ovary
other spermatozoa, at least by this time a
definite vitelline membrane surrounds the
zygote.
The Ovaries. The function of the testes
was known long before the analogous female
organs were identified. Galen (born l.'JO A.
IX) described the ovaries as testes muliebres.
William Harvey, in Ifi,';!, laid down the dic-
tum that the ovum is the starting ]«)inl
common to all aiiini;ils. In 1(1(11 Nicolaus
Stcno identified the female sex-gland of
mammals with that of sli;irks, ami lirsl
named it the ovary; bul il \\,is not initil
1837 that the identity of the human ovum
was established. This was the work of K.
\l. von Baer.
'The' human ovaries are a pair of dehiscent
almond-sha|)ed glands situated one on either
side of the uterus in a layer of the broad
ligament and below the b'alloiiian tubes. In
the mature adult the ovary is reddish-gray
in color, and about one and a half inches
licle, is attached to the inner lining of the
sphere The remainder is filled with the
follicular fluid. .According to different au-
thorities, from ten to fifty Graafian follicles
may be seen at one time bulging on the
surface of a functioning ovary.
In childhood the surface of the ovary is
smooth and even, but in adult life it becomes
pitted and librous, due to scars caused by
the rupturing of Graafian follicles.
The early differentiation of the primitive
ova is a feature which deserves special atten-
tion. Before a female child is born there
are perhaps 100,000 of these potential ova
in each ovary, but even before birth their
degeneration begins, so that at the time of
birth it has been estimated that there still
remain perhaps 30,000 or 40,000 potential
ova; but only a few of them develop, and
the rate is very slow. With puberty the
process of ovulation discharges an egg from
each ovary. .\s a rule ovulation occurs
Anatomicai. and Surgical AspI'CTs
405
generally at the time of menstruation, al-
though it has been shown that the two pro-
cesses may operate independently. t)vnla-
tion continues periodically at intervals of
about twenty-eight days until the climac-
teric. Thus during the thirty years of active
sexual maturity the human female will pro-
duce TOO or SOO mature ova. .\fter the
climacteric all of these potential egg cells
degenerate, and the ovary becomes shrunken
and fibrous.
After the Graafian follicle discharges its
ovum, the reconstructed body which remains
is known as the corpus luteum. If the ovum
is not fertilized, the corpus luteum (false)
reaches its maximum development within a
length, and lineally consists of a constricted
portion, the cord- like isthmus, which con-
nects with the uterus (its caliber barely ad-
mits a small bristle), the softer ampulla or
dilated portion, which curves over the ovary,
and the infundibulum, the funnel-shaped
terminal opening of the tube. The margin
of the latter is irregular, due to the presence
of fimbriae, one of which is attached to the
o\ar>-, the remainder being free.
While the oviduct is analogous in function
to the vas deferens, embryologically these
two ducts have a very different descent, the
oviduct developing from the duct of Miiller,
and the vas deferens from the Wolffian duct.
A cross-section of the Fallopian tube
Coron
Zona pellucida —
a radiata 4^v^
Nucleus
-?'.X%^
-^/^ — -V_^
^ ^
"is;
' '--1.
Fiaurc o. A Mature Human Ovum
week and then begins to shrink, and is en-
tirely absorbed within a short time, leaving
only a pitted scar. If. however, fertilization
occurs, the corpus luteum (truet continues
to grow for two or three months, and ac-
quires the size of one-third to one-fourth
that of the entire ovary. Finally it begins
to shrink, but may not totally disappear un-
til a month or more after labor.
The Fallopian Tubes (or Oviduets). Un-
like the case in the human male, in the fe-
male the mature gamete does not have a
continuous duct for its passageway. The
mature egg, after being discharged into the
body cavity, is taken up by the open and
fimbriated end of the Fallopian tube or
oviduct. This latter organ is a muscular
trumpet-shaped tube about four inches m
shows three coats, first, an outer peritoneal
covering: second, two muscular layers (the
outer with longitudinal and the inner with
•circular fibers): and third, a lining of mu-
cous membrane. The latter is folded longi-
tudinally, is ciliated, and contains numer-
ous glands. These cilia direct currents from
the peritoneal cavity to the cavity of the
uterus. They thus aid the movement of
the ova and impede that of the spermatozoa.
The Uterus (or Womb). The uterus is
the organ of gestation. It receives, implants
and supports the fertilized ovum until the
latter develops into a child. It is a hollow
pear-shaped organ with thick muscular
walls. In non-pregnant adults it measures
about three inches in length, two inches in
greatest breadth, and one inch in thickness.
406
Anatomicai, and Surgicai, Aspects
It weighs from one to one and a half ounces,
and is held in position by eight ligaments.
The upper portion of the uterus, which lies
above the entrance of the Fallopian tubes,
is called the fundus. Below the tubes the
gradually narrowing central portion is
called the body, and the constricted portion,
which is about one inch long, is called the
cervix or neck. The neck protrudes into
the upper anterior end of the vagina, and
contains the os uteri, which connects the
cavities of the uterus and vagina. It is
through this opening that the spermatozoa
enter, and from it that the child is delivered
at parturition.
The growth of the uterus is very slow
until the approach of puberty, when, for a
time, its development is very rapid. During
pregnancy the muscle fibers of the uterus
hypertrophy enormously, in order to make
room for the fetus, to hold it in place, and
finally to act as the principal object of ex-
pulsion at the time of parturition. After
parturition the uterus rapidly regains its
normal size and shape, but neither its cavity
nor the os uteri quite reaches the virgin
smallness.
The Ovum (or Egg). The human ovum
is a large non-motile spherical cell which, ac-
cording to different authorities, ranges from
0.17 millimeters to 0.35 millimeters in dia-
meter, and is thus barely visible to the naked
eye. As in all animals, the ovum is immense-
ly larger than the spermatozoon. In some
species the size ratio of the two kinds of
sex-cells is 1 to 100,000. Thus the contrast
between the large, spherical and inactive egg
and the small, flagellate, and exceedingly
motile spermatozoon is very great.
After the expulsion of the ovum from the
Graafian follicle, an important change must
take place before it is ready for fertilization.
This change is called maturation, and is ,
essentially a cell-division by which the, num-
ber of chromosomes (the essential bearers
of heredity) within the nucleus is reduced
to 'one-half the number of the normal cells
of the tissues of the body. Thus the egg
is prepared to receive a like contribution of
one-half the number of trait carrying quali-
ties in a similarly reduced nucleus of the
spermatozoon.
The ovum contains a nucleus or germinal
vesicle of relatively large size, being about
one-fourth the diameter of the entire ovum.
Besides the nucleus, the ovum contains
deutoplasm (yolk), which is a nutritive sub-
stance, and a still larger quantity of clear
cytoplasm. It is surrounded by a zona pel-,
lucida, which is a thin film giving it
strength. Sometimes the remnants of the
covering of smaller outer cells adhere, to
which cell-group the term corona radiata is
applied.
Of the seven or eight hundred ova pro-
duced by the average woman, she is of
course able to use only a very few (less than
a score) in the production of offspring.
SECTION B. THE PRINCIPAL TYPES
OF SURGICAL OPERATIONS USED
IN EFFECTING SEXUAL STERIL-
IZATION.
The mechanism of human reproduction is
so complex that it may be operated upon in
either the male or the female in a great
number of different manners, any one of
which will destroy or at least nullify the
essential function of reproduction. Neither
is it surprising that an abnormal variation
of an hereditary nature, from natural struc-
ture, or abnormal development due to in-
jury or to the inroads of certain diseases,
may so disorder this intricate mechanism
that it ceases to function and consequently
the individual possessing it is rendered in-
capable of begetting, or of conceiving and
bringing to birth, a child.
In the case of paired organs, such as the
testes and vasa deferentia in the male, and
the ovaries and Fallopian tubes (oviducts)
in the female, it is necessary to perform the
operation on both members of the pair.
Otherwise the person operated upon,
whether male or female, may retain sexual
fertility.
The matter of permanence of sterilization
is equally important with that of effective-
ness. Only in the case of the minor and
least radical means of sterilization is there
a possibility of restoring sexual fertility.
Particularly in cases of ligation, whether of
vasa deferentia or of Fallopian tubes, is
there such a possibility by the surgical re-
moval of the obstruction in the gamete-
carrying ducts. In certain types of ligation
restoration is said to take place naturally
without surgical or medical interference. In
cases of vasectomy in which only a verj
small section (J4 inch or less) of vas defer-
ens is removed, there is said to be a pos-
sibility of reanastomosing a functioning
duct.
The permanency of sterilization by scari-
fying or cauterizing the intra-uterine tobal
Anatomical and Surgical Aspects
407
openings depends upon the skill and effi-
ciency with which the particular operations
are performed, and because of the great
skill required, and the amount of guesswork
involved, such operations are to be placed
in the list of doubtful efficacy and per-
manence. The permanency of sterilization
by X-rays is not proven for either sex. With
the development of more extensive knowl-
edge of this relatively new agency, a method
of its use which will assure permanency may
be worked out, but at present it is quite
uncertain in both efficacy and permanency.
All other types of sterilization here listed for
both male and female are absolute and per-
manent, and when any one of them is prop-
erly performed, it is beyond the power of
nature or surgical skill to restore sexual
fertility.
Sexual sterilizing operations in common
use fall into two general groups, first, those
which destroy or remove the sex glands
which manufacture the essential germ-cells,
and, second, those which leave the gonad
intact, but which interfere with the delivery
of the mature germ-cells to the outside in
the case of the male, and to the uterus in
the case of the female. But there is also a
third class which destroys the sexual func-
tion by impairing or removing one of the
essential organs of coitus or child-bearing.
In this class are such operations as the am-
putation of the penis in the male, and the
extirpation of the vagina or of the uterus
in the female. These operations are, how-
ever, of little eugenical intent, because they
are much too radical for the sole purpose of
sterilization. In the case of individuals with
undiseased sex-organs, the operations of
vasectomy in the male and salpingectomy
in the female are, under the present stage
of surgical knowledge and practice, greatly
to be preferred. The reason is that they
are the least radical which produce per-
manent sterility.
1. Male.
Practically the human male may be made
sexually sterile * by operating upon the tes-
tes, the spermatic cords, or the penis, all
being essential organs of natural reproduc-
tion. Any of the following surgical opera-
tions or treatments, here listed in order of
decreasing radicalness, will effect sexual
sterility in this sex:
(1) Phallo-orchidectomy.
(3) Phallectomy.
(3) Castration (Orchidcctomy) "
'<) Spermectomy.
(5) Vasectomy
(6) Ligation of the vas deferens.
(7) X-ray Treatment.
(1) Phallo-orchidectomy. (Gr. tt>a\\6s,
penis; "Spx", testicle; e/CTo/*^, excision.)
This operation consists both in castration
and in the amputation of the penis. It ap-
pears in historical times to have been re-
sorted to for the purpose of producing
eunuchs with no external genitals. Boys so
operated on became the true castrati of the
Romans. Phallo-orchidectomy is still re-
sorted to by certain African tribes, for the
purpose of supplying slaves to the Moham-
medan markets. The operation when carried
out with barbarous crudeness is said to be
accompanied by a high death rate. Even in
successful cases the surgical shock is great
and requires a longer period of time for
convalescence than the ordinary castration
There is, of course, no eugenical purpose
served by such an operation that cannot be
found in much less radical treatment. The
minimum radicalness that will produce per-
manent sexual sterilization serves the maxi-
mum eugenical ends. Phallo-orchidectomy is
mutilation in addition to eugenically effective
castration.
(2) Phallectomy. (Gr. ^oXXos, penis; «kt-o/i^,
excision.)
This operation consists in the amputation
of the penis. It is rarely resorted to, so
far as available records go, for social
purposes, and has never been used for the
achievement of eugenical ends. Its use is
limited to practical treatment indicated for
purely medical reasons, usually carcmoma.
1 In the wider sense sexual sterility means
physiologically Incapable, for whatever cause,
of functioning as a parent; In the narrower
meaning it applies only to loss of ability to
produce active spermatozoa or ova. The term
is here used in the wider sense.
" "It is important to remember that there are
different degrees of castration, for in current
language these are seldom distinguished. The
Romans recognized four different degrees. 1.
True castrati, from whom both the testicles
and the penis had been removed. 2. Spadones,
from whom the testicles only had been re-
moved. 3. Thliblae, in whom the testicles had
not been removed, but destroyed by crushing;
this practice is referred to by Hippocrates.
4. Thlaslae, in whom the spermatic cord had
simply been cut. Millant, from whose Paris
thesis (Castration Crlminelle et UTanlaaiu,
1902) : I take these definitions, points out
that it was recognized that spadones remained
apt for coitus if the operation was performed
after puberty, a fact appreciated by many Ro-
man ladies, ad secnras libldlnationes, as St.
Jerome remarlced, while Martial (lib. iv.) said
of a Roman lady who sought eunuchs: "Vult
futui Gallia, non parere." (See also Millant,
I^es Ennuques k Travers les Acres, 1909, and
articles by Lipa Bey and Zambaco, Seznal-
FrobUme, Oct. and Dec, 1911.) Havelock
Ellis. "The Analysis of the Sex Impulse," p. 9.
408
Anatomical and Surgical Aspects
It is a major operation and requires the
usual hospital after-treatment of such op-
erations.
The following is an account of the surgical
technique given by Warbasse;'
"Amputation of the penis. * ♦ * A sound
or catheter is inserted into the urethra and
an elastic ligature is placed about the organ
at its root. " * * The glans is grasped
with tenaculum forceps, drawn forward, and
held by an assistant. The assistant also
holds the sound. A circular incision is then
made through the skin * * * The skin flap
is dissected back far enough to provide a
flap to cover the stump. The corpora
cavernosa are then divided. The urethra
with its surrounding spongy tissue is then
dissected free and divided at a distance of
about 1 cm. (J^ inch) anterior to the point
of division of the cavernous bodies.
"The dorsal artery and veins are then
tied. The constricting ligature is removed.
Some blood rushes out of the erectile sinuses
and bleeding. then usually stops. The divided
surfaces of erectile tissue if covered in by a
few sutures of fine catgut passing from side
to side. The urethra is then divided on its
floor for about 7 mm. (^ inch). The skin
is then pulled over the stump. A suture
catches the urethra on either side and fastens
it to the skin at the lower angle of the
wound. The rest of the skin is then approx-
imated in a vertical line. The object of
longitudinal division of the mouth of the
urethra is to insure against cicatricial "nar-
rowing. A catheter should be inserted into
the bladder for continuous drainage for two
days.''
The penis is the organ of copulation, but
has nothing to do with manufac'uring the
spermatozoa. A man whose penis has been
amputated is practically incapable of pro-
creating, but his testes may still proliferate
active spermatozoa, and his vasa deferentia
may still deliver them to the outside. If
artificial impregnation by means of the
syringe, using the male semen containing
active spermatozoa, ever becomes feasible in
the human species, as it has proven practical
with certain of the largest domestic animals,
then phallectomy will not necessarily pre-
clude a man from becoming a father.
(3) Castration (L castratrio castration);
also Orchidectomy (Gr. iSpx", testicle; iKTo/i'/i,
excision.)
Castration consists in the removal of both
testes in their entirety. This operation may
be modified by removing only a major por-
tion of the testes (the remaining portion
is called a "graft")," but by destroying their
functional ducts that sterilization is effected
without greatly interfering with the gland as
an organ of internal secretion. There is an-
other variation of castration, namely crush-
ing rather than excising the testes in young
boys. This operation destroys the functional
use of the testes in producing spermatozoa,
but apparently does not destroy the property
of internal secretion. Thus, in the end re-
sults, crushing the testes is much like remov-
ing only a major portion of them. So far
as information can be obtained, crushing is
not resorted to today. Eugenically the most
satisfactory form of castration consists in
removing both the testes in their entirety.
If it is desired only to accomplish steriliza-
tion without destroying the endocrine value
of the testes, then vasectomy, on account of
the simplicity and mildness, would appear
to be preferable to removing even a major
portion of the testes.
A eunuch is a man who was castrated in
boyhood. This type of man was known to
practically all of the ancient civilized and
half-civilized peoples. Eunuchs played an
important part in Egyptian, Chinese, Indian,
Persian and Roman life. In Mohammedan
countries they are still prized as harem
attendants. In the papal choir they (soprani)
were common until the accession of Leo
XIII. It should be pointed out that in
historic times most of the cases of castration
have been performed not primarily for
eugenical purposes, but for commercial or
social reasons. The latter motives must be
rated as shortsighted because, if a racially
valuable individual is unsexed, his natural
contribution to the success of the race to
which he belongs ends with his own personal
existence.
Neither ancient nor half-civilized peoples
were acquainted with the use of general
anaesthesia, but they nevertheless castrated
boys and men. The operation is a severe
one and today should be performed only
under hospital conditions. On account of
the shortness of time required, nitrous oxide
(laughing gas) is recommended by some
surgeons, also the operation may be per-
1 Warbasae, James Peter: Surgical Treat-
ment, Vol. III., p. 255. W. B. Saunders Co.,
Philadelphia, 1919.
- Proceedings of the Roy. Soc., Vol. 73, Nt.
1904. Experiments by S. G. Shattook and C. G.
Seligman.
iW'
Anatomical and Surcical Aspects
409
formed under a local anaesthetic. However,
a general anaesthetic is usually preferred.
Castration is usually unattended by serious
complications. In young boys it is even less
serious surgically than in adults.
In 1886 the value of double castration in
treating enlarged prostate glands was demon-
strated. As staged elsewhere, vasectomy was,
a decade later, proven to be just as efficaci-
ous in relieving this ailment.
Surgical Technique. (Figure 10.)
Preparation for operation.' "Preliminary
1)luut dissection. The isolation of the cord
should be carried as high as is necessary.
In the case of malignant disease the fascial
coverings of the cord should be removed
with the cord, and the amputation should be
made as high as possible. In ligating the
cord, it is best to separate it into several
smaller fasciculae and ligate each separately
rather than throw a single large ligature
around the whole mass. The wound in the
scrotum may be closed by a subcuticular
suture and compressing dressing applied."
^
\^:^
ll
»*^^i^i,,a«rt*» ^ .^BBBL-
fi^
9H;.ryrf|bns'ancl ^B i^H
F'
^Hft ^Iv ^^1
i.
L
P
cleansing of the operative regions should be
repeated several times at intervals of some
hours, and immediately before the operation
the penis should be bandaged in sterile gauze,
since it is a frequent source of infection in
operations about the genitalia."
The Operation^'
"An incision is begun just below the ex-
ternal inguinal opening and is carried down-
ward on the scrotum as far as the middle
of the testicle. This incision should pass
through the skin and the several layers oi
fascia down to the cord and the tunica
vaginalis. The testicle with the tunica vagi-
nalis and the cord should be isolated by
Figure lo. The Oteratimi nf Castration
After-treatment.
"The wound after this operation calls for
no special treatment. Wounds of the scro-
tum, on account of the folds in the skin,
are liable to sepsis. The stump of the cord,
unless the precaution is taken "of sewing it
into the abdominal ring, may retract and
bleed. Hernia is likely to make its appear-
ance after castration."^
Genito-Urinary Sur-
Surgical Treat-
W. B. Saunders
1 White and Martin:
gery, 1917, p. 340.
-' Warbas.se, James Peter:
ment, Vol. Ill, pp. 319-320.
Co., Philadelphia, 1919.
3 Crandon-Ehrenfried: Surgical After-Treat-
ment. W. B. Saunders & Co., Philadelphia,
1912 (Second Edition).
410
Anatomicai, and Surgical, Aspects
Usually the patient elects to remain in bed
eight or ten days, but according to some
authorities this is not necessary.
(4) Spermectomy. (Gr. (^Trfp/ia, seed; ektoiuij,
excision.)
This operation consists in the ligation and
excision of a .section of the spermatic cord.
It is, so far as sexual sterilization is con-
cerned, the equivalent of vasectomy; but
physiologically and surgically is more radical
in that in spermectomy the entire spermatic
cord, including the nerves, veins and arteries
cision of a section (,'4 inch to 1 inch) of
each of the vasa deferentia. The vas deferens
is the tube, a part of the spermatic cord,
which carries the matured spermatozoa from
the testis to the epididymis. Vasectomy is
the least radical operation for sexual steril-
ization upon the male which is sure to be
effective. This operation is comparable
functionally with salpingectomy in the fe-
male, because in each case the sex-germ
carrying duct is severed, but anatomically
and embryologically the two ducts are
Figure II. The Ol'cratioit of I'oscclomy
Drawing m.icle under the direction of Dr. Margaret H. Siiiytli. Stockton State Hospital,
California
which supply the testes, as well ,is (hr vas
deferens, which is the essential sex duel, arc
excised.
Physicians found that in Irealinn pro.st.ilic
enlargement spermectomy is just as effective
as castration, and still later that vasectomy
is just as effective as spermectomy. The
consequence is that at present there is
practically no therapeutic, and absolutely no
eugenical purpose served by spermectomy.
(5) Vasectomy. (L, vas, vessel; f'/>To/xiJ, ex-
cision.)
Vasectomy, which is a refinement of sper-
mectomy, consists in the ligation and ex-
quitc dilTcrent. the Fallopian tube in the
female being deep-seated and embryo-
logically developed from the duct of Miller,
most of which degenerates in the male fetus.
On the other hand, the vas deferens in the
male is much smaller in external diameter,
is situated near the surface, and embryo-
logically develops from the Wolffian duct,
most of which degenerates in the female
fetus.
Dr. H. C. Sharp, surgeon of the Reforma-
tory at JefTersonville, Indiana, appears to
have been the first to use vasectomy eugen-
ically on any scale. His operations of this
nature began in 1899.
Anatomicai, and Surgicaiv Aspects
411
Surgical Technique. (Figure 11.)
Vasectomy is a very simple operation,
which is accompanied by very little shock,
and may be performed without an anaes-
thetic, although most surgeons advise that
it be done under local anaesthesia. Its pain
wjthout anaesthetic has been compared by
men who were vasectomized to that ex-
perienced in the extraction of a tooth. In
most of the cases reported, the preparation
consisted only in a thorough cleansing of
the parts with soap and water. The whole
operation requires less than five minutes
when executed by a skillful surgeon.
VASECTOMY FOR THE PURPOSE
OF STERILIZATION AS DONE
AT THE STOCKTON STATE
HOSPITAL.
"Roll the vas between the thumb and
index finger, separating it from the other
structures of the cord. Fix it close against
the skin of the scrotum with small tenacu-
lum forceps.
At this point make incision over the vas
about 1 cm in length down to and exposing
vas. Lift up the vas with a strong curved
needle and cut out a portion Yz inch in length.
Leave the lower end free to drop back
into the sheath. Tie the upper end with
fine silk ligature.
Sew up the sheath with fine catgut, leav-
ing the upper end of the vas outside of the
sheath, to prevent possible union of the cut
ends of the vas.
Operation is done in a few minutes and in
insane patients best /dpne under general
anaesthetic, preferably gas. Operation is
practically bloodless."
Dr. Margaret H. Smyth,
Stockton State Hospital, California.
May 22, 1921.
According to Warbasse}
"It may be done under local anesthesia,
first anesthetizing the skin and then, after
incising the skin, infiltrating the cord with
weak cocaine solution, care being taken not
to puncture a vein. The skin incision begins
just below the external inguinal opening and
extends downward in the line of the cord
for tYi inches (4 cm.). The coverings of
the cord are divided and pressed aside. The
vas is isolated and two ligatures are tied
about it, 2 cm. (f^ inch) apart. A segment
of the vas 1.25 cm. (J4 inch) in length is
cut out from between the ligatures. The
two stumps should not be tied together.
The upper stump should be doubled back
upon itself and the ligature tied around the
doubled tube. This causes angulation which
more securely closes the tube against the
entrance of spermatozoa. The skin wound
may be closed with a subcuticular suture."
After-care.
The patient may leave immediately. Parts
may feel sore for a day or two, but the
patient need not abstain from work. There
have been no cases of serious post-operative
complications reported from vasectomy per-
formed for eugenical purposes.
However, in the case of enlargement of
the prostate in old men, "Vasectomy done
early gives a mortality of from 3 to 5%i. If
performed later, the mortality is 10 to 15%."''
but there is practically no relation between
vasectomy of young men for eugenical and
of old men for therapeutical purposes.
Permanency. Vasectomy, properly per-
formed, causes absolute and permanent sex-
sterility, unless surgery is again resorted to,
but even in which case restoration of func-
tion is doubtful.
Dr. G. Frank Lydston" has described the
surgery of re-anastomosis of the vas deferens
in cases wherein restoration of function is
desired.
Dr. Wm. T. Belfield* of Chicago, makes
the following three statements:
(1) Vasectomy which removes over an
inch of the vas offers little chance of restora-
tion of the lumen and function of that tube.
(2) Vasectomy which removes 54 inch,
and leaves the obliquely cut ends of the
tube overlapping, permits subsequent restora-
tion of the lumen and function of this tube
by a modification of the technique described
by Mayo, Annals of Surgery, Jan., 1895.
(3) Restoration of an outlet after oc-
clusion of the epididymis by gonorrhea, has
been successful in a minority of the attempts
made.
(6) Ligation of the vas deferens. The
ligation of the whole spermatic cord, or of
the vas deferens alone, has been attempted
and supported as a means of attaining sexual
sterilization in the male. So long as the
1 "Warbasse, James Peter: Surgical Treat-
ment, Vol. III., p. 320. W. B. Saunders Co.,
Philadelphia, 1919.
2 Modern Surgery: Da Costa, p. 1388. 7th
Edition. 1918.
s Impotence, Sterility and Sex-Gland Implan-
tation: Rlverton Press, Chicago, 1917. Chap-
ter VI., pp. 92-96.
4 Leter to author, July 29, 1919.
412
AnATOMICAI, and SURGICAI, ASPECTS
vas deferens is not a functional duct, whether
because a section has been excised, or be-
cause it is occluded by ligation, or inflamed
following disease, the particular male will be
sexually sterile. The successful ligation of
the vas deferens is surgically more difficult
than its excision. There is a possibility that
if the ligature consists of organic substances,
it is apt either to be absorbed if too thin, or
to suppurate if too thick.
According to Dlckinsoni "a flne silk or linen
ligature or silver wire is passed about it (the
vaa deferens) and drawn snugly enough to
obliterate the caliber of the duct, but with in-
tention not to cut it through. The ends of the
ligature are cut close, the duct dropped back,
and the skin closed. The ligature becomes en-
cysted. A test made of the semen shows all
other elements, and unalterated bulk, but no
spermatozoa. If at some subsequent time it
is desired to resume this capability for fertili-
zation, the wound can be reopened and the
little ligature cut off. But experiment has
shown that, as with other ligatures, with mu-
cous lining in apposition with mucous lining,
and particularly with pressure from behind, it
is dlfBcult or impossible to shut off a canal.
• • • No ligature except a silver wire will
last."
It is suggested that ligation in two or
more places would promote permanence.
The surgical severity of the operation is
about the same as that accompanying vasec-
tomy, but in its after-effects, due to the
inflammation from the ligatures, ligation ap-
pears be accompanied by more temporary
discomfort than that which follows simple
vasectomy.
Restoration of an occluded vas deferens
by surgical interference stands a greater
chance in ligation than in ordinary vasec-
tomy. Surgeons have had some experience
in such work, because in many cases the
vasa deferentia are occluded by gonorrheal
infection, but the principal reason for expect-
ing restoration in the case of ligation is that
it is very difficult to secure permanent oc-
clusion "in a duct by muco-mucous ap-
position."
(7) X-ray treatment. Roentgen or X-
rays were discovered in ISO.'i by W. K.
Roentgen; radium in 1899 by P. and Mme.
Curie. Experimentation had not continued
long before it was discovered (first in
guinea-pigs and rabbits, 1903, and later in
man, 1904), that exposure to repeated doses
of X-rays caused azoospermia.
Sterilization by X-rays is the most subtle
of known methods. In the male X-radiation
effects sterility by causing the destruction
of the epithelial cells lining the tubuli sem-
iniferi of the testes, certain of which cells
in normal course develop into spermatozoa.
The result is that the semen is devoid of
spermatozoa.
Since X-rays cannot be felt, there is no
need for an anaesthetic of any sort in con-
nection with their application to effect ster-
ility, neither is there any surgical shock
accompanying the treatment.
If skillfully applied in proper doses, there
should be no untoward results. Unskillfully
applied, this treatment may result in "Roent-
gen burns", and thus seriously damage the
tissues affected. Persons who work with
X-rays and are subjected to them for long
periods of time, without proper protection,
suffer greatly from tissue destruction.
Dosage and Technique. The American
Roentgen Ray Society, Dr. Arthur C.
Christie, President, March 17, 1921, reports as
follows: "In reference to the use of X-rays
for effecting sexual sterilization: (a) Appa-
ratus needed: The ordinary 10 kilowatt out-
fit with Coolidge tube would be the most
satisfactory for this purpose, (b) Dosage:
5 milliamperes; 8 inch spark gap; 10 inch
target skin distance; each treatment 8 min-
utes through 5 millimeters aluminum filter;
both testicles being treated at once, (c)
Number of applications: Three, at intervals
of four weeks, (d) Physiological consequen-
ces: None other than sexual sterility."
Comment. There have been so few cases
of sexual sterilization of human beings by
X-rays, in which clinical records have been
kept, that physicians are only just now begin-
ning to describe with assurance the tech-
nique of the treatment. It appears, how-
ever, that the ultimate treatment will .con-
sist in several applications each of a few
minutes' duration, at intervals of a number
of weeks, but the optimum number, duration
and intensity of application are still matters
of investigation.
The principal problems connected with
this type of sterilization are those of tissue
injury, of effectiveness, and of permanence.
The question naturally arises whether a sex-
gland, having been made sterile by X-ray
will have to be irradiated at certain inter-
vals in order to maintain sterility, or whether
there is a possibility of restoring fertility
through surgical or medical treatment; This,
too, is a matter for experimental determina-
} Simple Sterilization of Women by Cautery
Stricture at the Intra-Uterlne Tubal Openings,
Compared with Other M'ethods: Surgery, Gyne-
cology and Obstetrics, August, 1916, pp. 203-
214.
ANATOMICAIy AND SURGICAI, ASPECTS
413
tion. In order to be of certain eugenical
value, it is clear,- of course, that sexual ster-
ility must be permanent.
From Colwell and Russ ' we learn that in
1903 Frieben, working with rabbits and
guinea-pigs, demonstrated that prolonged
exposure to- rays produces sterility and
atrophy of testes, and showed that sterility
Avas due to destruction of the epithelium
lining seminiferous tubules. The first hu-
man experimental work was done in 1904 by
Philipp. Two men were irradiated in the
perineal region for therapeutic reasons. The
first was exposed to X-rays on thirty suc-
cessive days (total of 365 minutes). The
second was exposed on eighteen days (total
190 minutes). Examination showed absence
of spermatozoa in both subjects.
In 1905 Brown and Osgood'' recorded 18
cases of X-ray workers who were subjects
of complete azoospermia. These men had
done extensive X-ray work for more than
three years.
Dr. James A. Honeij,' of the Yale Roent-
genological Laboratory, wrote: "I feel that
practical application of the X-rays to sexual
sterilization should not be practiced until
considerably more animal experimentation
has been undertaken."
That much is yet to be learned concern-
ing the use of X-rays and radium in effecting
sexual sterilization in man, is well set forth
by the following letter from Dr. Halsey J.
Bagg, Memorial Hospital, 106th street and
Central Park West, New York City, who is
conducting animal experimentation with
radium and X-rays:
December 5, 1921.
" * * * The whole subject interests me
greatly, especially in the light of my recent
biological experiments with both X-rays and
radium on disturbances in mammalian de-
velopment.
"I have conferred with our X-ray depart-
ment, and they agree that the dose specified
in your questionnaire (X-ray outfits com-
monly used by dentists) is a 'full skin dose,'
but experience here has shown that individ-
ual difference in biological reaction is so
great that we do not know, how permanent
the sterilization might be. I believe that,
so far as we know, no scientific experiments
have been conducted along these lines on
the larger mammals and until such studies
are made, we are not justified in drawing
firfal conclusions.
"There is also a tendency to question the
statement that the physiological effects are
probably nothing more than psychomental
derangement. Physicians I have spoken to
suggest that more serious internal secretion
changes might result from treating especial-
ly younger humans, and from a eugenic
standpoint, I suppose, this is just the class
you want to reach. Again only experiment-
ation can answer the question.
"The question of sterilization by radium
is also an unanswerable one at the present
time. No complete data, that I know of,
are available, and in the light of cases, where
the reproductive function has been retained,
a considerable time after radiura treatment,
the physicians I have spoken to, (who have
had considerable experience in the use of
radium) would not commit themselves so
far as to suggest any possible dosage."
In a short paper urging the proper protec-
tion of X-ray workers on account of their
liabili'ty to injury, and especially to sexual
sterility. Dr. Alfred C. Jordan' says:
"Considering the entirely undefended po-
sition of the testes, it is no matter for sur-
prise that they should be affected by very
small doses of X-rays, provided the doses
be repeated often enough. Wisdom sug-
gests the advisability of inserting a small
protective apron under the clothes as an
additional measure. This expedient is in
fairly general use, but it is merely an ad-
juvant, and cannot be relied upon in the
absence of the other measures I have de-
scribed.
"I am not aware of any reliable data
bearing on the interesting question of the
possibility of recovery from sterility, once
it has become complete; assuming the con-
dition to be recognized early enough, say
while there are still immobile spermatozoa,
it would appear possible that two or three
years of complete abstinence from X-ray
work might result in some degree of re-
covery, but I do not see how a man could
expect to recover otherwise .unless he were
to take such extreme measures or precaution
as would preclude the possibility of his
doing really useful work."
It may be noted in this connection that
investigators quite uniformly report that
there is no change or deterioration in po-
1 Radium, X-Rays and the Living Cell. pp.
235-253,
2 Aruerican Jour, of Surgery. Vol. 18, p. 147,
1905.
■5 Letter to tlie author, October 8, 1919.
•' Sterility Among X-Ray "Workers: British
Medical Journal, July 6, 1907, p. 15.
414
Anatomical and Surgicai, Aspects
tency of the men who had become sterile
from X-rays.
2. Female.
In the female, operations having for their
primary purpose the effecting of sex-sterility
have not been practiced as extensively as
have analogous operations on the male. The
reasons are doubtless; first!, that sexual im-
pulses of the female affect social life in a
less aggressive manner than those of the
male; second, that radical types of sexual
sterilization carried out on young girls do not
cause the radical departure from the normal
later development caused by analogous
operations ton the male; third, that the
essential female genital organs are situated
deeply within the abdominal cavity, and con-
sequently their surgical treatment requires
much more skill than is called for in opera-
tions upon the male. The ancients knew
little concerning the homologous relations
between the testis and the ovary, indeed
until recent times the female was looked
upon as the soil, and the male as the sup-
plier of seed. Surgically it is only in later
years (1873) that fairly skillful and safe
operations for removing the ovaries were
developed, consequently the use of oophorec-
tomy for eugenical sterili-;ation is a relatively
new agency.
The following operations and treatments
will cause sex-sterility in the human female:
(1) Pan-hystero-kolpectomy.
(2) Hystero-salpingo-oophorectomy.
(3) Oophoro-hysterectomy.
(4) Hysterectomy.
(5) Salpingo-oophorectomy.
(6) Oophorectomy (ovariectomy, ovario-
tomy, castration, spaying).
(7) Curetting and Cauterizing Intra-Uter-
ine Tubal Openings.
(8) Salpingectomy.
(9) Ligation of the Fallopian Tubes.
(10) X-ray Treatment.
This list of sex-sterilizing operations could
be considerably extended, but, as i.s the case
with several of "the longer names here given,
the new appellations would indicate com-
posite operations, consisting in several sim-
pler operations performed at one time. Hut,
notwithstanding this limitation, tlic greater
complexity of the female reproductive sys-
tem permits a larger repertoire of operations
for effecting sexual sterilization than is of-
fered in the case of the male. However,
unless there is a very urgent pathological
Indication, the first four operations here
listed as possible for sterilizing the female
are so radical that it is not necessary, nor
has it ever been suggested, that they be
used for purely eugenical purposes. The
several other and simpler operations (num-
bers 5 to 9) present an ample choice for al-
most any conceivable case calling fof eugen-
ical sterilization.
(1) Pan-hystero-kolpectomy. (Gr. ttos, Troj-,
all; varipa, womb; koKttos, vagina; hroit^, ex-
cision.)
This operation consists, as its hyphenated
name indicates, in the extirpation of the
womb and the vagina, and the obliteration
of cavity made thereby. Obviously it is a
very severe operation and is accompanied
by great surgical shock. It is never carried
out except for the most urgent medical rea-
sons, and, so far as known, has never been
resorted to for eugenical purposes.
(2) Hystero-salpingro-oophorectomy. (Gr.
vo-Tcpo, womb: aaXinyi, tube; i-iiv, egg; ^^peir,
to bear; e/CTOjn^, excision.)
This operation consists in the removal of
the uterus, the oviducts and the ovaries. (If
following Caesarian section, it is called Caes-
arian hysterectomy or Porro's operation.)
(3) Oophoro-hysterectomy. (Gr. air, egg;
(j>epei,v, to bear; iaripa, womb; iKToiiii, excision.)
This term refers to the surgical removal
of the ovaries and the uterus.
(4) Hysterectomy. (Gr. wrlpo, womb;
e/cTo/tt^, excision.)
Surgical Technique.
Hysterectomy consists in the removal of
the uterus. (Panhysterectomy, the removal
of all of the uterus.) The following are the
variations in the operation:
(a) Abdominal hj'sterectomy. performed
through the abdominal wall.
(b) Vag^inal hysterectomy, performed
through the vagina.
(c) Para-vaginal liysterectomy, performed
through a perineal incision.
Other operations on the uterus: 1. Supra-
vaginal amputation of the uterus. 2. Curet-
tin.c: the intra-uterine tlubal openings.
Surgical Technique.
Of the above named several variations in
hysterectomy the commonest is the abdom-
inal variety, of the surgical technique of
which Kelly-Noble' gives the following de-
scription: '^
"Doyen's Panhysterectomy. In this oper-
ation the myomatous uterus is pulled
through the abdominal incision and swung
forward and down over the pubes. The
1 Kelly-Noble: Gynecology and Abaomlnal
Surgrery. W. B. Saunders Co., 1907, Vol. I., P-
701.
Anatomical and Surgicai, Aspects
415
posterior vaginal fornix is opened through
the pouch of Douglas and the cervix is
caught with a tenaculum forceps; The cer-
vix is now drawn through the posterior vag-
inal incision and strong traction is continued
while it is cut away from the vaginal walls
laterally and in front. The section is made
close to the muscle of the uterus to the,
inner side of the attached structures, which
are under considerable tension from the trac-
tion upon the cervix. The broad ligaments
and uterine vessels are clamped if necessary,
tirley too radical to be mentioned among
the operations executed primarily for eugen-
ical purposes.
(S) Salpingo-oophorectomy. (Gr. (r&Xmyi,
tube; i^&v. egg; <pepeiv^ to bear; eKTo/iii, exci-
sion.)
Salpingo-oophorectomy consists in the re-
moval of the ovaries and oviducts by operat-
ing through the abdominal wall. This is
the first of the operations on the female
named in the present series which has been
used primarily for eugenical purposes, but
Figure 12. The Abdominal Incision Used in Salpingectomy and Oophorectomy
and by continuous incision hugging the uter-
ine wall the fibroid uterus is literally skinned
out of its attachments. No attention is paid
to the adnexa during this procedure, the line
of excision passing through the insertion of
the tubes and of the round ligaments at the
uterine cornua. After the uterus has been
removed, the adnexa are dealt with as de-
sired and the operation is completed by
sewing up the vaginal wound and uniting
the peritoneum over it."
The removal of, or in fact any operation
upon, the womb is a radical operation, em-
ployed for only the most urgent medical
(usually cancer) or obstetrical reasons.
While hysterectomy, of course, effectively
sterilizes the woman operated upon, it is en-
even in such cases the motive is generally
a mixed one. Oftentimes surgeons in open-
ing the abdominal cavity for the eugenical
purpose of removing a section of the Fallop-
ian tube find the conditions such that in their
judgment, it is pathologically or physiologi-
cally advisable to remove both the ovaries
and the entire tubes. This operation is thus
looked upon as a surgical incidenB in eugen-
ical sterilization, and not one which in the
case of healthy, normal sex-organs, would
be ordered for the purpose of effecting sex-
sterility.
(6) Oophorectomy. (Gr. aiv, egg; *«?«"
to bear; £KTo,u.ri, excision.)
Oophorectomy is in the female the ana-
logue of castration in the male, in that ir
416
Anatomical and Surgical Aspects
both cases the sex-glands are removed in
their entirety.
It is accomplished through (a) a three-
inch median line incision in the abdominal
wall (one incision suffices for the removal
of both ovaries'); or (b) by operating
through the vagina.
This operation is often performed in case
of diseased ovaries. In 1701 a Lanarkshire
physician by the name of Houston is said
to have carried out a partial extirpation.
But in ]80il, Ephraim McDowell of Ken-
tucky, a student of John Bell of Edinburgh,
was the first to perform this operation in a
successful manner. In 187;2, Dr. Roljcrt Bat-
"1. By Abdominal Section. The patient
is placed in the Trendelenburg position and
the abdomen opened in the middle line above
the pubes for a distance of 7 cm. (3 in.);
this may be enlarged if necessary. The in-
testines are carefully pushed upward from
the region of the pelvis and a double or
triple row of sterile gauze pads placed trans-
versely from one iliac fossa to the other, to
prevent the gut from descending into the
field of operation, and to absorb blood and
other discharges which may escape during
manipulations. The packing serves also to
prevent the radiation of heat from tihe in-
testines. The first two fingers are then
Figure 13. The Operation of Oophoreetomy
tey, of Rome, Georgia, began to perform
these operations to relieve dysmenorrhea.
In t'he following years the, so-called " Battey
operation" was extensively used, but physi-
cians and surgeons do not prize its therapeu-
tic value as highly as formerly.
Oophorectomy is a major operation, and,
because it involves the opening of the ab-
dominal cavity, it is always accompanied by
considerable shock. Like all other major
operations, it requires skilU'd surgery and
the elaborat;e technique of the modern hos-
pital operating room.
Surgical Technique. ( iMgures 1;; and i:i)
Kelly-Noble ' .give tlu' following descrip-
tion of the technique of the o|ieration:
Obphorectnmy. Where the ovaries are
healthy.
"This may be carried out by both the ab-
doininal and vaginal routes. * * * .-\s far as
statistics go, it is difficult to say which is
the safer method.
introduced and passed down behind the
pubes until the fundus uteri is reached; they
are then moved along the broad ligament
until the ovary is felt. This procedure may
also be carried out by first placing the fin-
gers on the infundibulopelvic ligament and
then moving them inward toward the ovary.
The latter, along with the corresponding
tube, is raised into the abdominal incision.
■Phe infundibulopelvic ligament and the ovar-
ian ligament are held with forceps by an as-
sistant, who at the same time compresses
the ovarian artery. The ovary is then cut
away from its attachment to the broad liga-
ment and the denuded surface left thorough-
ly obliterated by a continuous catgut suture;
in this way, usually, all bleeding is checked.
If there should be troublesome oozing a sep-
arate ligature may be applied to the infun-
dibulopelvic ligament so as to control the
1 Kellv-Nolile: Gynecology and Abdominal
Surgery. W. B. Saunders Co., 1907. Vol. I-.
pp. 613-614.
vi>,^^<aii
Anatomical and Surgical Aspects
417
ovarian artery, or one may also be applied
internal to the site of the ovary to secure
branches of the uterine artery anastomosing
with the ovarian. The pelvis is next care-
fully sponged, the abdominal pads removed,
and the abdominal incision closed. * * *
"3. By Vaginal Section. The peritoneal
cavity may be entered by an anterior or
posterior colpotomy. If the ovary can be
pulled down easily it may be removed by
either of the procedures just described. If
it cannot be brought down satisfactorily,
the vaginal opening should be closed and the
abdominal operation carried out. The vag-
inal route should not be selected when the
vagina is long, narrow, rigid, or contracted,
nor when the uterus cannot be pulled well
down."
Convalescence.
Recovery from oophorectomy demands
from one to three or four weeks in bed. Or-
dinarily in uncomplicated cases the patient
will be sitting up on the ninth day and out
in two weeks.
The mortality rate in this operation was
very high in early days, especially before the
introduction of antiseptics. After this ad-
vance the rate with the best surgeons
dropped to 10 or 13 per cent. At the present
time it is probably about one-half or two-
thirds of this. •
Permanence of sterilization hy oophorectomy
Double oophorectomy makes the patient
absolutely and permanently sterile, but the
removal of only one ovary or tube may not
be successful in causing sterilization. Ac-
cording to Kelly-Noble:^
"The tube without the corresponding ovary
is still functional and may serve to conduct
an ovum from the opposite ovary to the
uterus. That this is the case has been
shown by experiments on animals and by
observation in the human female. The
ovary without the tube on its own side is oi
greatest value to the system because of the
influence on body metabolism and because
it can produce ova which may enter the
uterus by way of the opposite tube and be-
come fertilized.
"* * * it has been shown that a small
portion of the ovary is as valuable to the
organism as the whole structure and that a
short piece of tube may be of service in
conveying an ovum to the uterus."
A Substitute Operation. A recently re-
ported eugenical substitute for oophorec-
tomy:
" New Operation for Sterilization, Ofifering
the Possibility of a Return of the Ability to
Conceive Later.'" — Blumberg prevents the
migration of the ovum into the tube by
suturing the ovaries in a pocket of the
broad ligament. The procedure may be done
through the vagina, and its advantage lies
in the present theoretical possibility oi a
return of the power of conception at a later
date, as a result of liberation of the ovary."
Until further evidence has been presented
on the subject, this report and those of
many other novel. sterilizing operations must
be taken as purely suggestive of future
fields for research,
(7) Curetting or Cauterizing the Intra-
uterine Tubal Openings. Occasionally re-
ference is made to what purports to be a
new or a very simple method of effecting
sexual sterilization:
(a) Often the claim is made that effective
sterilization can be consummated in the fe-
male by curetting the horns of the uterus,
without an abdominal or vaginal incision of
any sort. Recently Dr. Bernard Barrow'
reported a number of cases in which he
used this method. He has not, however,
demonstrated the efifectiveness of his pro-
cess to the satisfaction of the surgical world.
Most of his patients were negresses who
were suflfering from venereal diseases, so that
this complication probably destroys the val-
idity of his tests.
(b) A second method consists in the so-
called "chemical slough stricture."
Dickinson* suggests that the treatment of
the inside upper uterine angles, as advised
by Froriep in 1850 but not generally fol-
lowed, is worthy of new study. It appears
that stricture by chemical action is very
painful, has often resulted in adhesions, and
is not sure to be effective, and, taken as a
whole, is condemned on account of' its pres-
ent lack of sureness, its painful procedure,
and possible complications.
(c) This same surgeon (Dickinson*) calls
attention also to experimental closure of the
intra-uterine tubal openings by electrical
cautery. He says:
1 Kelly-Noble : Gynecology and Abdominal
Surgery. Vol. I., p. 609. W. B. Saunders Co.,
1907.
2 Berliner Klinische Wochenschrift, April 14,
1913. Reported in N. T. Medical Journal, May
31 1913
s Reported before South Side Virginia Med-
ical Association, Dec. 10, 1912.
* Robert L. Dickinson: "Simple Sterilization
of Women by Cautery at the Intra-Uterine Tu-
bal Openings, Compared with Other Methods.
Surgery, Gynecology and Obstetrics, Aug.,
1916, pp. 203-214.
418
Anatomicai, and Surgical Aspects
"The only outlook for a simple and sure
method, and that without risk or loss of
time and with but little pain, seems to be
through closure of the tube, where it enters
the uterus, by a stricture produced as the
result of a burn with the fine-tipped cautery
electrode, a procedure simple enough to be
done in tho office. Of course all sterilizing
measures are predicated on childbearing, in
any given instance, being a grave risk to
life or productive of permanent ill health.
Steps of procedure. Time selected, 7 to
10 days after period (for least vascularity-
and thickness of lining).
Location. Hospital, if the patient is sen-
sitive; office, usually.
Technique.
(1) Loose clothing, empty bladder.
(2) Lithotomy posture (or ,Sims).
(3) Bimanual examination.
(4) Sims speculum, tenaculum in cervix.
(5) Injection of 5 to 10 minims 10 per
cent novocaine adrenalin solution into uterus
with Skene intra-uterine pipette and pres-
sure; also application to vaginal cervix and
vagina, as anaesthesia controls. After 10
minutes and due bleaching proceed to —
(6) Test the shape and length of cavity
by ordinary uterine sound; this length noted.
(7) Slide on cautery sound goes to same
measure.
(8) Burns of some spot on external os,
with slight pressure, until wire tip is buried,
to serve as a cautery control. Note time
needed.
(9) If cervix is hard, burying of tip in
an anaesthetized place on the vaginal wall
as control. Note of required time.
(10) Cautery sound passed to cornu; held
there, without pressure, the same length of
time needed to bury wire tip in cervix or
vagina, with same amount of current.
(11) Repeated on opposite side.
(12) Watching slough and scar form on
cervix or vagina. When firmly contracted,
one may be able to test the tubes for patency
by the Gary method — injccfing a silver so-
lution into the uterus under pressure, and
securing an X-ray shadow of the distended
uterine cavity, and also of tho tubes, if they
are open."
(8) Salpingectomy. (Gr. ff<iX7ri7{, tube;
c/CTO|Ui), excision.)
Salpingectomy is comparable functionally,
but not anatomically or surgically, with vas-
ectomy in the male. It has been used exten-
sively in operations desiring to effect sexual
sterilization only, so that in some quartlers
it has come to mean the equivalent of "sex-
ual sterilization of the female," just as the
expression "sterilization of the male" often
connotes the specific operation of vasectomy.
Salpingectomy consists in the surgical ex-
cision of all or a portion (often about %
inch) of both oviducts (Fallopian tubes).
According to surgical authorities, it may be
achieved (a) by abdominal salpingectomy,
in which the operation is executed through
one median incision through the abdominal
wall; (b) by vaginal salpingectomy, operat-
in.g through the wall of the vagina; or (c)
by salpingectomy with cuneiform resection
of uterine cornu. (Neuman.)
Salpingectomy has often been performed
to remove diseased tubes, and sometimes
with a view to sterilization when a preg-
nancy would have endangered the life of
the patient (as in malposition- of uterus,
marked tendency to toxemia, etc.). But
when performed to prevent pregnancy, it
has until recently usually been a by-product
of an abdominal operation necessitated for
some other reason. Only within the last
decade has it been performed for purely
eugenical purposes.
Surgical Technique. (Figures 14 and 15.)
However performed, salpingectomy is a
serious operation and should be attempted
only by skilled surgeons, under the best of
modern hospital conditions.
(a) Through the Abdominal Wall.
Abdominal salpingectomy as described by
Warbasse ' is to be recommended as pre-
senting the best available method for achiev-
ing eugenical sterilization.
"The abdomen is opened in the median
line and the middle of the tube picked up
with forceps. A cut is made through the
tube and about 1 cm. ()^ inch) into the
broad ligament below the tube at the inner
side of the forceps. Each cut end of the
tube is grraspcd with fine forceps, the peri-
toneum not being included. The broad liga-
ment is stripped back from it for about 1 cm.
(K inch). This much of the naked tube is
then tied with catgut and cut off. This is
done to each of the cut segments. The
tube is thus shortened about 2 cm. (f^ inch).
This should be done with as little injury as
possible to the peritoneum. With a tine
needle and catgut tihe peritoneum is then
sultured with its raw edges turned in, so
1 Warbasse, James Peter: Surgical Treat-
ment, Vol. III., p. 429. W. B. Saunders Co.,
Phila., 1919.
Anatomical and Surgical Aspects
419
that the two stumps of the tube are covered
with peritoneum. The same operation is
done upon each tube."
(b) Salpingectomy through p'agiiia.
"An operation may be done through tlie
vagina. A posterior colpotomy through the
posterior fornix is performed, and the peri-
toneal cavity opened in the cul-de-sac. A
tube is brought down into the opening, its
fimbriated end cut ofT, and the stump in-
verted by two rows of peritoneal sutures,
thus closing the passage of communication
between the tube and the peritoneal cavity.
Or the middle of the tube may he resected
and buried under the peritoneum of the
broad ligament as described for the aljdom-
inal operation. If the tube is simply ligated
in two places and cut across, it is entirely
possible for the lumen to become reestab-
lished.
to close the opening in the uterus with two
layers of sutures; the deep sutures to ap-
proximate accurately the cut surface of the
uterine muscle, the superficial ones to bring
together the cut edges of the peritoneum of
the broad ligament over the repaired
muscle\"
Permanence of sterilization by salpingectomy.
If the uterine stump of the Fallopian tube
is left patent, it may still function in trans-
mitting the ovum to the uterus. However,
if skillfully performed, double salpingectomy
is an effective and permanent means of ster-
ilizing the human female.
According to Williams,'
"It was formerly believed that steriliza-
tion could be ei¥ected by ligating the prox-
imal end of either tube; but experience has
shown that the ligatures eventually cut
Figure 14. The Operation of Salpingectomy
"Blumberg (Berlin, Klin. Wochenschr.,
Apr. 31, 1913, No. 16) buried the ovary in
a pocket of the broad ligament. The ab-
domen is opened through the posterior for-
nix of the vagina. The pocket is made by
dropping the ovary into that part of the
broad ligament which extends between the
Fallopian tube and the li.gament of the ovary
and suturing the free edges over it. The
ovary is thus enveloped in broad ligament;
it is movable in this pocket; and when de-
sired the line of union may be separated,
and the ovary released."
(c) "Bilateral salpingectomy ivith cunei-
form resection of the uterine eornu is con-
sidered to be the surest method of produc-
ing sterility through operation upon the
tubes. It was first proposed by Neuman in
1898. * * * ^11 writers agree that in per-
forming the operation great care should be
taken to make the wedge-shaped section of
the uterine cornu deep enough to remove
.ill of the interstitial portion of the tube and
through or become absorbed, and the lumen
of the tube may subsequently become re-
stored and with it the possibility of futrure
pregnancy. It was next suggested that the
object might be accomplished by applying
a double ligature to each tube and excising
the portion between them; but the experi-
ments of Fraenkel upon animals, and the
experiences of Zweifel, and Cripps and Wil-
liamson upon the living woman, have shown
that even these measures do not insure
against conception, since the ligatures may
be absorbed and the cut ends of the tube
become united. In order, therefore, to ren-
der a woman permanently sterile by an
operation upon the tubes, their proximal
ends must be buried between folds of the
broad ligaments, or they must be excised by
wedge-shaped incisions at the cornua of the
uterus and the uterus and the wounds closed
' Heineberg, Alfred:
.luly 15, 1916.
-• Williams. Obstetrics.
D. Appleton & Co.
Med. Journ.,
4th Ed., 1917, p. 485.
420
Anatomical and Surgical Aspects
by sutures. The former procedure is prefer-
able, is readily effected, and I now employ
it as the operation of choice, unless amputa-
tion of the uterus is indicated for some other
reason."
Following tlie delivering of a child by
Caesarean section, " * * ' sterilization should
not be attempted by the removal of the
ovaries, for the reason that the retracting
uterus may exert such tension upon the ped-
icles that the sutures may slip and fatal
hemorrhages result, as well as for the reason
that' their internal secretion is necessary to
the future well-being of the patient."
"Excision of a centimeter of tube was also
of uncertain results. Attempts have been
made to resect the tubes between two lig-
atures and bury the uterine stumps, closing
them over with peritoneum. This did not
prevent pregnancy — neither did cutting the
tubes and cauterizing the cut ends effect
thorough and permanent closure of the
lumen. Ordinarily bilateral salpingectomy,
leaving a short stump at the uterine end,
gives no assurance of sterilization. In a
case where the left ovary and both tubes
were removed, the ends of the uterine
stumps being tied with silk ligatures, the
'-OvcLri«3n o.rtcrv&.v'ein
Figure 15. The Operation of Salpingectomy as practiced at the Stockton State Hospital, Col.
Drawing made under the direction of Dr. Maragaret H. Smytli, Stocltton State Hospital,
California
Restoration of sexual functions follozving
salpingectomy.
According to Warbassc,'
"Operations for restoring the divided tube
arc done (1) when the tube is accidentally
severed or (2) when operation has been done
tb induce sterility and sterility is no longer
desired.
"In operating to restore the potency of
artilicially closed tubes or wounded tubes,
the peritonemn should be incised and the
stumps exposed. The closed ends should
be cut off and the two lumens brought to-
gether and sutured end-to-end. The peri-
toneum of the broad ligament is used to
reinforce the suture line. These operations
promise well for restoration of function, if
nicely done."
According to Leonard,'
patient became pregnant after four years.
In fact, cases of pregnancy following sal-
pingectomy are not infrequent."
SALPINGECTOMY WITH THE PUR-
POSE OF STERILIZATION AS
DONE AT THE STOCKTON
STATE HOSPITAL
"Incision is made in the medium line of
the abdomen — one to one and a half inches
in length, just above the pubic bone.
The index and middle fingers are inserted
into the abdomen and the fundus of the
uterus is located by touch. The tips of the
' Warbas.se. James Peter: Svirgical Treat-
ment, Vol. III., p. 429. W. B. Saunders Co.,
Philadelphia, 1919.
= V. N. Leonard: Amer. Journ. of Obstetrics,
March, 1913. The difficulty of Producing Ster-
ility of Operations on the Fallopian Tubea
ANATOMICAL AND SURGICAL ASPECTS
421
fingers are carried outward along the tube.
The tube is drawn up into the incision and
clamped with a small hemostat at t,he isth-
mus— this being the narrow portion of the
tube and relatively free from blood vessels,
making the operation practically bloodless.
An incision about Yz inch in length is
made in the serous covering exposing the
tube. The tube is picked up with thumb
forceps and half inch is cut out.
The uterine end of the tube is ligated
with fine silk; the incision in the serous coal
is closed with continuous fine catgut suture.
The same procedure is done on the opposite
tube.
Abdominal wound is closed in layers.
General anaesthetic is preferable. Opera-
tion in ordinary conditions can be completed
in 15 minutes. Patient is usually left in bed
one week."
Dr. Margaret H. Smyth,
Stockton State Hospital, California.
May 32, 1921.
Sutnmary.
To sum up the matter,, salpingectomy is
the least radical and the most safe method
now available for efifecting sexual steriliza-
tion in the female.
(9) Ligation of the Fallopian Tubes. This
operation seeks to eflfect sexual sterilization
in the female by causing an occlusion of
the oviducts or Fallopian tubes. Surgically
it is just as serious as any other operation
involving the opening of the abdominal
cavity. It is subject to the same objections
in reference to permanency and complica-
tions that are given for the ligation of the
vas deferens; indeed, ligation of the Fallop-
ian t'ubes, because of their greater external
diameter, presents a more complicated situa-
tion than the analogue in the male. Al-
though a considerable external constrictive
pressure may be applied, there is great dif-
ficulty in causing a permanent closure of a
duct. The reasons appear to be, first be-
cause the tube, being lined with mucous
membrane, will not readily cohere internally,
and second, the ligature is apt either to be
absorbed or to cut into the tissue if too
tight, or to suppurate if too loose.
Materials desirable for ligatures, in order
of resistance to absorption, are as follows:
Silver wire, absolutely permanent; silk-
work; catgut; silk, apt to be absorbed, some-
times in a few days.
V. N. Leonard,' writing on "The Diffi-
culty of Producing Sterility by Operations
on the Fallopian Tubes," says that ligation
of the Fallopian tubes by tying heavy silk
ligatures about the tubes in the middle has
been found unsuccessful in many cases.
Also tubes ligated in two places and cut
between ligatures were found to reunite.
No standard technique exists for success-
fully and permanently sexually sterilizing a
human female by ligation of the Fallopian
tubes. Unless further experiments prove
ligation to be permanent, and uncomplicated,
it will not constitute a trustworthy or a de-
sirable subs'itutei for salpingectomy, still the
field is a promising one for research.
(10) X-ray Treatment. The treatment
for sterilization by X-rays consists in both
sexes of subjecting the sex-glands and, of
course, the tissues covering them to irradia-
tion. In the female X-radiation effects s'!er-
ility by causing the destruction of the Graaf-
ian follicles of the ovaries.
Dosage and Technique. Dr. Arthur C. Chris-
tie, President of the American Roentgen
Ray Society, reports that the dosage,
strength of irradiation, intervals and number
of treatments for effecting sexual sterility is
the same for the male and the female (See
p. 412). In the case of the female, however,
each treatment requires application to four
areas anteriorily and four areas posteriorily.
In the female, as in the male, Dr. Christie
reports no physiological dangers accom-
panying the proper application of X-rays
for efifecting sterility.
Comment. Experiments^ on rabbits, mice,
bitches and monkeys showed atrophic
changes in the ovaries, with degeneration of
Graafian follicles. Only one case is recorded
of a human ovary. The patient was irra-
diated on account of menorrhagia and dys-
menorrhea. The treatment was inefifectual,
so an operation was performed in which the
right ovary removed. This showed a few
small hemorrhages and very few follicles,
in which degenerative changes had begun.
The changes were similar in character to
those observed in lower animals.
According to Schafer," "If the testicles
are exposed to the action of X-rays the
1 V N. Leonard: Amer. Journ. of Obstetrics,
March, 1913. The Difficulty of Producing Ster-
ility of Operations on the Fallopian Tubes.
2 Colwell & Russ: Radium, X-Rays and the
Living Cell. pp. 235-253.
3 Schafer, B. A. The Endocrine Organs, pp.
135-136; p. 137. London, 1916.
422
Anatomical and Surgical Aspects
seminiferous epithelium undergoes degenera-
tion, although the interstitial is not, at first
at any rate, attacked." * * * "But the inter-
stitial cells of the ovary do not form so
distinct a tissue as those found in the tes-
ticles; they are, moreover, said to be de-
stroyed by the X-rays, whereas those of the
testicle are not so affected; they appear
therefore no« to be of identical nature."
The Journal of the American Medical
Association, Feb. 11, 1933, quotes from the
Schweizerische Medicinische Wochenschrift:
"Pregnancy after Roentgen Exposures.
Steiger's verdict from the evidence presented
by the literature and his own experience is
that with a single exposure, even with a dose
large enough to bring amenorrhea, no injury
need be apprehended on the ovum develop-
ing later from a follicle that has escaped the
action of the rays. No injury need be ap-
prehended if the exposure is made towards
the end of a pregnancy, but there are
grounds for fearing malformations in the
fetus if conception has already occurred at
the time of an intensive exposure."
SUMMARY:
a. Types of Eugenical Sterilizing Operations
Available.
There are a score or more of surgical
operations and treatments, any one of which
will cause sexual sterility, but if eugenically
sexual sterility only is sought, as the matter
now stands, there are available:
1. For the Male.
(a) A very simple and effectdve operation
— namely, double vasectomy. This may be
performed in a few minutes in a surgeon's
office, with practically no more pain to the
patient than one suffers in having a tooth
extracted. However, a local anassthetic is
desirable. The patient requires no hospital
after-treatment, but may go immediately
after the operation. Under certain condi-
tions the vas deferens, by surgical operation,
may be re-anastomosed and sexual fertility
reestablished. There is no general physiolog-
ical or mental disturbance attributable to
the operation.
(b) A more radical operation — double cas-
tration. This requires hospital facilities, but
may be performed in a few minutes. Local
anaesthesia or a mild general anaesthetic,
such as nitrous oxide (laughing gas), may
be used. But the best practice calls for a
general anaesthetic, — ether or chloroform.
The patient generally chooses to remain in
bed for a few days. With children and
adolescents recovery is more rapid than
with adults. Castration in boyhood results
in halting the development of many mas--
culine characteristics, including vigorous
sexual impulses.
3. For the Female.
(a) A less radical operaflion — double sal-
pingectomy, which in skilled hands is effec-
tive and permanent, and which does not dis-
turb the general physiological processes of
the body. This operation involves opening
the abdominal cavity and is therefore a
major operation, to be performed only under
the best of modern hospital conditions. Cases
of surgical restoration of function following
salpingectomy appear to depend largely
upon the specific nature of the original oper-
ation. It seems likely, however, that the more
effective salpingectomy will prove very diffi-
cult or even impossible to restore by surgical
means.
(b) A more radical operation — double
oophorectomy. The loss of the ovaries re-
sults in a considerable disturbance of the
normal physiological functions of the body.
Surgically salpingectomy and oophorectomy
are about equally difHcult and serious,
because each involves the opening of the
abdominal cavity, with the consequent two
or three weeks of post-operative hospital
care.
(b) Future Methods.
Doubtless in the future other operations
or systems of treatment will be devised for
destroying the function of sexual fertility
of the very complex human male and female
reproductive systems, or at least present
methods of sterilizing the female will be
greatly improved. Quite naturally, the eu-
genicists, the lawmaker, and the surgeons
will be interested in the development of
effective operations of maximum simplicity
and those accompanied by the least unto-
ward effects upon the physiological and
mental activities of the persons operated
upon. .\t present, in both sexes, the liga-
tion of the gamete-carrying ducts, and, in
the female, curettiing or cauterizing the in-
tra-uterine tubal openings, offer promising
fields for experimentation. But, of the sev-
eral methods proposed for simplifying thf
achievement of permanent sexual steriliza-
tion,. X-ray treatment holds out the greatest
promise. If this promise is fulfilled within
the next few years it will mean that, with
proper hospital facilities, with very little
Anatomicai, and Surgical, Aspects
423
trouble or expense to the state and very
little inconvenience to the cacogenic indi-
vidual treated, sexual sterility can be effected
with the minimum amount of physiological
changes other than sterility itself. This
would be especially important in the case of
women, because, even now, the simplest
effective treatment, salpingectomy, neces-
sitates the opening of the abdominal cavity.
In the male the need of a simpler steriliza-
tion treatment is not so great because phy-
sicians have, in the operation of vasectomy,
an effective treatment which, surgically, is
a very minor matter. However, even in
this sex, effective X-ray treatment would
probably be found to be preferable to vasec-
tomy.
More must be learned, also, about the
permanency of sexual sterility effected by
X-rays. If it turns out that such sterility
is only temporary its use ior eugenical pur-
poses would be greatly impaired as com-
pared with the present sure and permanent
surgical methods. However, the present
outlook is that permanency of sterility will
probably be obtained by X-ray application.
More clinical records are necessary, before
a statement of effective technique can be
formulated, and certain physiological results
determined.
(c) Weighing the Matter of the Type of
Eugenical Sterilization in Relation to
Legislative Policy.
From the facts presented in this chapter
it follows logically that the statute should
define eugenical sterilization in general
terms, amply safeguarding the individual
operated upon (see Sec. '2, Model Steriliza-
tion Law, p. 446), but should not name the
specific surgical type of operation or treat-
ment to be used in specific cases; and be-
cause of the different therapeutic needs of
each case, and because of the different ef-
fects, both physiologically and mentally, of
the several types of operations performed
on various personality-types of each sex and
of different ages, the law is wise in placing
the responsibility upon a competent execu-
tive (see Section 17, Model Sterilization
Law, p. 450) for determining the particular
type of surgical sterilizing operation to be
performed upon, or medical treatment to be
given to, the particular person who by due
process of law is declared cacogenic. The
statute should also make due provisions to
insure that this responsible official, after
duly studying the particular case, and duly
consulting with his medical and surgical
advisors, shall decide upon that specific oper-
ation which, besides causing permanent sex-
ual sterilization, will be most apt to affect
in the most favorable manner the social,
economic, marital and health reactions of
the person to be sterilized.
Also, t/he law should be flexible enough to
permit the utilization of future improve-
ments in the type and technique of surgical
or medical means of causing sexual steriliza-
tion.
NOTE.
Continence and Contraception. This sub-
ject appertains more to the applied psychol-
ogy than to the letter of the present chapter,
but it is here relevant because it is often
suggested that sexual sterilization is not
necessary in order to insure society against
reproduction by particular individuals. It is
said that an injunction to sex-continence, or
teaching the use of mechanical contracep-
tives, such as the birth controllists have re-
cently advocated, would accomplish the pur-
pose. However, those who have studied the
sex-life of the socially inadequate know that
when such persons are not under the cus-
todial care of the State in one of its better
institutions, sex-intercourse takes place, and
children are born to those who are sexually
fertile. The only thing in favor of. mechan-
ical contraceptives is that their use appears
to be simpler and less radical than surgical
sterilization; but their use cannot be insured,
so that when we survey the whole range of
proposed preventatives, from the most rad-
ical of surgical operations to an injunction
to sex-continence, the students of the prob-
lem take a logical ground and hold that for
effectiveness, the least radical treatrnent at
present .consists in vasectomy in the male
and salpingectomy in the female. With
these operations sexual sterility is sure, be-
cause they make it physiologically impos-
sible, regardless of moral control, for per-
sons properly operated upon to beget or to
conceive offspring.
Regardless of the legal, social, economic
and medical aspects of birth-control, so-
called, and not considering its relations to
other eugenical problems, it is clear that, if
reproduction is to be forbidden to certain
individuals legally declared cacogenic, these
individuals must be sexually segregated or
rendered physiologically incapable of pro-
creation. In this case moral injunction will
not suffice.
CHAPTER XIII.
THE PHYSIOLOGICAL AND MENTAL EFFECTS OF SEXUAL
STERILIZATION.
I ntroduction 425
1. The Normal Course of Sexual Functions 425
2. Functions of the Sex-Glands, other than Reproduction.
a. Male — Testes 425
b. Female — Ovaries 428
3. Classification of the Case Histories 429
a. Type of Social Inadequacy 430
b. Sex 430
c. Age 430
d. Type of Operation 431
4. Testimony on the Effects of Sexual Sterilization.
A. Primary Testimony 431
B. Supplementary Testimony
a. A. W. Wilmarth, M. D., Superintendent Wisconsin Home for
Feeble-minded .- 431
b. Havelock Ellis, in his book "The Sexual Impulse" 432
c. Robert Reid Rentoul, M. D., in his book, "Race Culture or Race
Suicide" 433
d. Martin W. Barr, M. D., in his book, "Mental Defectives" 433
e. F. C. Cave, M. D., Journal of Psycho- Asthenics, 1911 434
5. Summary.
A. Functions of the Sex-Glands 434
B. Effects of Sexual Sterilization 434
I. Anatomical and physiological effects by sex, age, and type of operation.
(A) Male.
(n) Vasectomy or its functional equivalent 434
(1) Before puberty 434
(2) During adolescent and adult life 435
(3) In old age 435
(b) Castration 435
(■] ) Before puberty 435
(2) During adolescent and adult life 435
(3) In old age 435
(B) Female.
(a) Salpingectomy or its functional equivalent 435
( 1 ) Before puberty 435
(2) During reproductive period 435
(3) After the climacteric 435
(b) Oophorectomy 435
( 1 ) Before puberty 435
(2) During reproductive period 435
(3) After the climacteric 435
II. Summary of Evidence on the Mental and Temperamental Effects
of Sexual Sterilization 436
III. Summary of Evidence on Sexual Sterilization as a Therapeutic Agent 436
Physiological and Mental Effects
425
INTRODUCTION.
In a given case it might be demonstrated
by expert students of human heredity that
a given person is a potential parent of off-
spring a high -percentage of whom would be
destined by heredity to be socially inadequate
of a very low and degenerate nature, and
that such a given cacogenic person ought,
therefore, in the interests of the general wel-
fare, to be prohibited from reproducing. But
besides all this, unless the legislative author-
ities of the state be acquainted with the
nature of the operation proposed, and of its
most probable physiological and mental
eflfects upon the person sterilized, the bal-
ancing of the eugenical benefit to the race
against a possible physiological injury to the
individual could not logically or fairly be
made in statutory enactment.
Because, then, of this intimate relation
between intelligent legislation on the one
hand, and the physiological effects of eugen-
ical sterilization on the other, it is deemed
pertinent here to review briefly the normal
course of sexual functions in human develop-
ment; to describe the functions of the sex-
glands, other than reproduction; to set forth
a basis for classifying case histories for com-
parative study; and finally, to review by ab-
stract a number of authentic case histories
showing the physiological and mental effects
of sexual sterilization of various surgical
types upon different personality-types of in-
dividuals of each sex and of different ages.
1. THE NORMAL COURSE OF SEX-
UAL FUNCTIONS.
In man, as in all other species, the life
of the race is inextricably tied up with the
success of its reproductive capacities. ■ The
sexual impulse is an essential factor in the
reproduction complex. In general there ap-
pears to be a close relation between the pres-
ence of normal sexual desire and the
existence of sexual maturity in the particular
individual. This parallelism is close, but not
absolute. In tracing the rise, culmination,
and decline of the sexual instincts, it is found
that both the infant and very old person are
devoid of strong sexual impulses. The spe-
cific quality and course ofthe sexual impulse
and sexual fertility vary greatly with in-
dividuals, families and races, and are affected
also by climate, education, mode of life, and
other elements of environment.
The greater sexual activity, as well as the
earlier sexual maturity, of persons and races
who live in the tropics, compared w^th those
who live in cooler regions, is generally rec-
ognized. In the same type of individual,
city life, in general, appears to bring about
sexual maturity about one year earlier than
country life. "Heredity, however, has no
small influence on libido and sexual power.
Thus there are families in which, with great
physical strength and longevity, great libido
and virility are preserved until a great age,
while in other families the vita sexualis
develops late and is early extinguished . . .
The potentia generandi ceases usually at the
age of sixty-two, but potelntia coeundi may
be present much longer.'"
In the human male, puberty, which is
recognizable by the deepening of the voice,
the appearance of the beard and pubic hair,
and occasional pollutions, takes place on the
average in most civilized countries inhabited
by European stock at the age of about four-
teen years. On the average sexual maturity
in man begins at eighteen, reaches its climax
at forty, and then slowly declines.
In women, ovulation, the occurrence of
which is recognizable by the beginning of
the menstrual periods, begins in northern
countries at about the age of twelve or four-
teen years, btit in certain individuals in the
tropics' it is said to begin as early as the
ninth year. Ovulation, and with it sexual
fertility, ceases with the climacteric, or meno-
pause, after a duration of about thirty years.
With women, as with men, the factor of
heredity is a very important one in deter-
mining- the course of sexual fertility, not only
in its duration in years, but also the per-
fection and rate of activity of the whole
reproductive mechanism. Fertility, including
frequency of reproduction, multiple births,
and duration of the reproductive period, are
fundamentally family traits, modified by
environment.
3. THE PHYSIOLOGICAL FUNC-
TIONS OF THE SEX-GLANDS,
OTHER THAN REPRODUCTION,
a) Male — Testes.
The influence of the testes upon mental,
physical and temperamental reactions in
males of all species has been long recognized.
Generally speaking, castration' prevents the
development of qualities which are classified
as primarily masculine. The practice of
castrating male infants for the purpose of
rearing eunuchs has prevailed from very
1 Krafft-Ebing, Psychopathia Sexualis, pp.
25-26.
" Millant, Les Bunuques k Tracers les Ages,
1909.
426
PhysioIvOGicai, and Mental Effects
early times among many different nations.
Until modern times, the removal of all the
external genitals of male infants among cer-
tain African peoples has been practiced for
the purpose of selling such children as slaves,
who are much sought in the Mohammedan
slave markets, where they are said to bring
a price several times as high as that paid
for a slave not mutilated. These eunuchs,
from a race who normally are very active
sexually, fail to develop beard; there is also
an arrest of the development of the larynx,
so that the voice fails to change with man-
hood from its youthful soprano quality;
there is also a failure to develop the usual
masculine growth of the thorax and the
pelvis. There is a tendency toward a certain
form of giantism, and to lay on fat. Tem-
peramentally, the aggressive and pugnacious
qualities peculiar to males are generally
lacking. The sexual impulses also are entire-
ly wanting. All these results appear to be
due to the lack of the internal secretions
supplied by the normally developed and
active testes. The same physiological changes
take place whether the operation consists in
removing all of the external genitals, or the
testes only.
Castration after puberty prevents a fur-
ther development of sexual qualities, but does
not undo the development which has already
taken place, due to the previous activity of
the internal secretion of the sex-glands. It
must be remembered, however, that the
maintenance of some of the qualities of each
sex is dependent upon the continuance of sex-
glandular secretions. Moreover, the degree
to which all of the tissue of the two testes
has been removed measures in general the
degree to which the physiological effects of
castration are manifest. The removal of only
one testis, or the leaving of a portion of the
testicular tissue, results in the persistence of
some of the sexualqualities which are pro-
duced by the glandular hormones.
Not only does the removal of the gonads
affect the development and maintenance of
the secondary sexual characteristics but the
internal secretions of these glands play a
part in the reaction of the organism as a
whole which seems to bo dependent upon
the influence of the gonad secretions upon
the ductless glands. Thus according to
Schafer,' if the testes be removed, "Most of
the ductless glands are in some way affected,
the growth of the thyroid being diminished,
that of the suprarenal cortex, pituitary, and
thymus increased; the last named organ
shows arrest of its normal retrogressive
changes. If castration is performed in the
mature animal, and therefore after the
secondary sexual characters have become
developed, there may be some retrogression
of these, and such accessory generative
glands as the prostate tend to undergo
atrophic changes. But the effects are now
mainly upon metabolism, and are shown in
a tendency to increased formation of fat,
although the limit of assimilation of carbo-
hydrates is lowered and alimentary glyco-
suria is more easily produced. How far
these effects on metabolism are direct or
how far indirect, through other endocrine
organs, it is not possible to say, but the fact
seems to be well established that the pituit-
ary body becomes hypertrophied after castra-
tion (Fichera, Cimorini). The increased
length of limb bones which occurs when the
operation is performed before adolescence
may be associated with the change in the
pituitary (Tandler)."
Vincent' reviews in considerable detail the
influence of the sex-glands as organs of in-
ternal secretion. He gives an account of the
experiments and deduction? of many inves-
tigators in reference to the effect of the sex-
gland upon the growth and development in
both sexes of many different species.
According to this author, (Vincent^ "The
first result of castration before the age of
puberty is the hindrance to further develop-
ment of the reproductive apparatus. The
vesiculae seminales and the prostate are
small and atrophied. The penis does not
share in the atrophy, so that in Eastern
countries it is frequently considered neces-
sary to resmove this as well as the testes.
The atrophy of the vesiculae seminales and
the prostate after castration can also be
noted experimentally in animals; and. fur-
ther, if castration be performed in quite
young animals, the operation prevents the
development of the prostate, whereas divi-
sion of the vas and the abolition of the pro-
duction of semen have no arresting influence.
(Steinach, Griffiths, ^\'allace). The atrophy
of the prostate after castration has led to
the introduction of this method of treating
prostatic enlargement (Ramm, cited by
medl). Castration on one side produces no
effect, the retention of a single testis being
sufficient to maintain the functional integrity
of both prostates. It is stated, also, that
' Schaf er, E. A. ; The Endocrine Organs, pp.
131. London, 1916.
■^ Vincent, Swale: Internal Secretion and the
Ductless Glands, pp. 68-74. London, 1912.
Physiological and Mental Effects
427
Cowper's glands atrophy after castration
(Schneidemuhl; see however, Nagel). It is
generally assumed that the growth and in-
tegrity of the prostate are determined by a
hormone furnished by the testis."
In reference to the effect of castration
upon the bones, Vincent continues;
"* * abundant evidence has now been
accumulated that the absence of the func-
tional testis brings about abnormal growth
of bony tissues. But this, according to
modern views, is not due to the fact that
the testis is not acting as an organ of repro-
duction, but to the fact that the normal
internal secretion from the organ is not
available for the controlling of the growth
of bone in the body" i' * *. "* * * males
whose testicles are functionless are found to
possess unduly long limbs. This undue
length aflfects the radius and tibia more than
the humerus and the femur. The process of
ossification is unduly prolonged. He finds,
also, that in animals which have been cas-
trated, there is an increase in the length and
weight of the bones, and a delay in the
obliteration of the epiphysical cartilages.
In eunuchs there is delay in the completion
of the process of endochondral ossification.
Further, the long bones of the appendicular
skeleton are unduly long. This excess of
length is particularly remarkable in the more
distal segments of the limbs. The bones are
thin, smooth, and slender."
In reference to the efifects of castration
upon other species, Schafer' says: "In cer-
tain animals which undergo seasonal varia-
tions in sexual activity the! secondary sexual
characters which generally accompany these
variations are also abolished or modified by
castration. Thus, if a stag is castrated, the
antlers either remain undeveloped or if de-
veloped are shed prematurely and are- not
replaced, or replaced only by incomplete
growths. But structures which are common
to both sexes — in species, for instance, in
which both sexes possess horns — are not
modified by castration. In Arthropoda the
correlation between the generative glands
and the secondary sexual characters (which
in many species are even more marked than
in Vertebrata) does not hold good. Experi-
ments upon caterpillars show that removal
of the generative glands has no influence on
the development of the male sexual charac-
ters of the imago; nor do the glands, if
transplanted into individuals of the other
sex, aflfect the secondary sexual characters
or instincts of the host. This need not be
taken to mean that the secondary sexual
characters in these animals are not the result
of an internal secretion, but may be inter-
preted by supposing that some organ other
than the generative glands furnishes the in-
ternal secretion .which produces those char-
acters."
"In Vertebrata, at any rate, there can be
little doubt that the internal secretions of
the generative glands are an important, if
not the chief, factor in determining the de-
velopment of the secondary sexual charac-
ters. And that this development is inde-
pendent of the normal functions of the gen-
erative glands is shown by the fact that
ligature of the vas deferens has no effect
in preventing it. Moreover, transplanted
testes and portions of testis (in which the
generative cells themselves may completely
disappear) have been found capable (in'
birds) of preventing the results of castration:
the comb, wattles, spurs, etc., of the cock
being developed in the usual way (Shattock
and Seligmann and others). Nussbaum's
experiment on the efifect upon the develop-
ment of the thumb-pad of grafting pieces of
testis from another frog into the dorsal
lymph sac of a castrated male frog also
points to the existence of an internal secre-
tion of the testicles in these animals."
"It seems certain, therefore, that the de-
velopment of the secondary sexual charac-
ters in the male sex is dependent upon an
internal secretion of the testicle, and it is
highly probable that it is yielded not by the
generative cells (gonads) but by the inter-
stitial cells. In cryptorchids, and also after
experimental ligature of the vas deferens, in
both of which, as we have seen, the seminif-
erous epithelium is atrophied but the inter-
stitial tissue is well developed, the secondary
sexual characters and sexual desires are nor-
mal. Successful implantation of the whole
or part of a testicle in a young castrated
animal is also followed by development of
those characters, although in most cases the
seminiferous epithelium of the graft disap-
pears. Loewy found male secondary charac-
ters developing in caponised cockerels fed
with testicle-substance. Bouin and Ancel
state that extract of testicle freed from all
morphological elements may, when injected,
produce a similar result. In support of the
theory that an autacoid which aflfects the
development of the secondary sexual organs
and characters is formed by the interstitial
1 Bchafer, B. A. The Endocrine Organs,
pp. 134-135. London, 1916.
428
Physiological and Mental Effects
cells, they have found that if one testicle
is removed from a rabbit and the remaining
one has the vas ligatured its interstitial tis-
sue becomes hypertrophied."
b) Female — Ovaries.
The early removal of the ovaries (spay-
ing) in the human female causes a much
less striking change, so far as individual
development is concerned, than is caused by
the castration of the male. This is due
doubtless to the fact that in bodily structure
the female is the less specialized sex, and
consequently not to be so much affected by
the removal of a gland analogous to that
which in the male causes the most radical
changes in many sexual qualities. During
adult life the removal of the ovaries causes
the cessation of pregnancy, and, as in the
male, in the female castration seems to eflfect
a tendency toward obesity.
The physiological reproduction complex in
the female is affected by the internal secre-
tions of all of the organs involved in this
complex. According to Schafer ' "Th. Sack
found that if corpus luteum be added to the
food of white rats it promotes retention of
nitrogen, i. e. laying on of flesh, in females;
in the male this result was not obtained. "
It appears also that the corpora lutea are
highly instrumental in the development of
the mammary glands during pregnancy. An
extract of corpus luteum injected subcut-
aneously in young virgin rabbits is known
to have caused the large development of the
mammae and secretion of milk. There is
some evidence to show that the internal secre-
tions of the uterus have an important bear-
ing upon the physiology of reproduction, but
in balancing the evidence Schafer ' seems to
think that "the uterus contains a galacta-
gogue hormone only at this period" (during
lactation). Similarly, the internal secretions
of the mammary gland and of the placenta
exert influences upon the complex under
consideration.
According to Vincent,' the secretion of
the ovaries appears to control. "* * *
the processes of the oestrus cycle, and the
general condition of the female organs of
generation and the mammary glands. The
corpus luteum is an essential factor in main-
taining the raised nutrition of the uterus
during the earlier stages of the period of
gestation, and so helps in the fixation of the
embryo. The corpus luteum also determines
by a specific internal secretion the increased
growth of the mammary glands after ovula-
tion or impregnation."
The tendency in the castrated female to
develop male characters is not nearly so
great as the tendency of the male to develop
what appears like female characters. The
reason is again that castration stops the
development of secondary sexual qualities.
In youth these qualities are not so highly
differentiated between the two sexes. In
later development the male diverges more
greatly from the juvenile type. Castration
in either sex causes the delay in develop-
ment or the atrophy of these secondary
sexual quahties. Thus the male, being cas-
trated, would tend to resemble more closely
the female, who morphologically is the more
juvenile in type. But on the other hand, the
castrated female, who has diverged less far
from the infantile type, and not at all in the
direction of the masculine type, in reverting
to the juvenile stage, would not tend to
resemble the male.
In discussing the effects of the removal
of the ovaries in women and comparing the
effects of such removal to the effects
wrought by castration in the male and also
in discussing the ovary as an organ of in-
ternal secretion in animals generally, Scha-
fer' says, "The effects resulting from re-
moval of both ovaries (oophorectomy; spay-
ing) are externally not so striking as with
the similar operation in the male sex. If
the operation is performed in young animals
or if the ovaries are congenitally atrophic, it
is not infrequently found that characters
distinctive to the male are to some extent
assumed. In the human subject, as well as
in animals, a constant result is that the
uterus remains small: the external changes
characteristic of puberty either do not occur
or are greatly modified: there is absence of
menstruation. A tendency to the male type
of trichosis is often also exhibited. When
the operation is performed subsequently to
puberty the results are less marked — but
menstruation ceases, and there is sometimes
atrophy of the mammae: in animals a dim-
inution in size of the uterus and Fallopian
tubes has been substantiated (Carmichacl
and Marshall, in rabbit; Marshall and Jolly,
in white rat). According to Hatai the sup-
rarenal capsules are diminished in size in the
female white rat, whereas in the male cas-
tration causes a marked increase of those
• Schafer, E. A. The Endocrine Organs,
pp. 145-146. London, 1916.
2 Vincent, Swale. Internal Secretion and
the Ductless Glands, pp. 76. London, 1912.
" Schafer, E. A. The Endocrine Organs,
pp. 139-140. London, 1916.
Physiological and Mental Effects
429
organs: the same author states that although
there is an increase in size of the pituitary,
it is very sHght as compared with the effect
of castration in the male. Metabolism is
affected mainly, as in males, in the direction
of a tendency towards adiposity. This, how-
ever, may be indirect and through other
ductless glands, which are affected much in
the same way as they are in the male sex
by removal of the testicles (p. 134).
"Doubtless, as in the male sex, the effects
which are produced by the ovaries in deter-
mining" the female secondary characters are
due to an' internal secretion. And reasoning
from analogy one would be disposed to refer
the production of this not to the generative
epithelium but to special cells, like the in-
terstitial cells above referred to. The peri-
odical changes (heat, menstruation) which
occur in the female appear to be due neither
to the Graafian follicles nor to the corpora
lutea. For heat in animals still occurs if
the corpora lutea are destroyed, or if none
are present in the ovary. Moreover, the
changes which follow spaying can be pre-
vented by ovarian grafts, and these may con-
tain no corpora lutea."
There are, however, some instances in
animals in which the records show that the
tendency of castrated females is to develop
masculine traits. The explanation generally
given is that secondary male characters are
normally present in latent form in the fe-
male, but that the secretion from the ovaries
inhibits their development.
According to Morgan ' the secondary
characters of mammals, birds, crustacea and
insects, rest on- different physiological foun-
dations. He concludes that "in mammals
the secondary characters owe their develop-
ment to the testes, * * * g^t in birds the
ovary takes something away. "
That in mammals many qualities depend
upon the secretions of the sex-glands is most
strikingly shown by experiments in castrat-
ing and transplanting ovaries into males, and
by spaying and transplanting testes into
females. Steinach ^ with rats and guinea-
Pigs has shown that such exchanges result
m males that develop mammary glands even
to the functional stage; their bones and hair,
as well as their conduct, become more fem-
imstic; while masculinized females grew
large and coarse, attacked females and be-
haved generally in the masculine manner.
In short the physiological and mental
effects of castrating or spaying the human
female may be very great, but they do not
tend, toward masculinity to the degree that
castration of the male appears to induce
feministic (but in reality to preserve juve-
nile) qualities.
The historical and general consideration
of the subject leaves no doubt that in the
human species both testes and ovaries, apart
from their primary functions in producing
spermatozoa and ova, play very important
roles as organs of internal secretion. As
such their function is equally important with
many other glands which exist primarily for
the purpose of controlling growth, metabol-
ism and conduct by their internal secretion.
3. CLASSIFICATION OF CASE
HISTORIES.
The matter of classification is always a
difficult one. Indeed there are, if one will
draw the line fine enough, as many classes
as there are individuals to be classified; but
for the immediate purpose we are interested
in human beings who have been made sex-
ually sterile as the result of surgical opera-
tions having for their purpose the effecting
of such sterilization. Secondarily we must
take into consideration the case histories of
persons who have been made sexually ster-
ile as the result of operations had primarily
for some other purpose, but of such a nature
that the reproductive function is destroyed.
Similarly, sterility by traumatism and dis-
ease cannot be entirely ignored, because all
of these secondary classes when described
in clear histories may throw considerable
light upon the main problem, namely: Given
a person of known age, sex, constitutional
make-up and physiological condition, who
is a potential parent, and whose hereditary
make-up is so defective that he or she
should not be permitted to procreate off-
spring, what would be the probable physical,
mental, temperamental, social and economic
effects of sterilizing this given individual by
a given type of surgical operation? With
this purpose in mind, we must classify our
case histories into groups describing cases,
all of which in the same group have the
same complex of the principal factors con-
sidered, so that by finding out how a large
number of persons of the same given com-
plex of conditions have reacted to a given
surgical operation for effecting sexual steril-
ization, we may predict within limits.
1 Morgan, T. H. Heredity and Sex. Colum-
bia University Press, 1913, pp. 144, 159.
2 Steinach, E. Femlnlerung von Mannchen
und Maskulierung von Welbchen. Zentralbl.
f. Physiol. XXVII, 1913. p. 3.
430
PhYSIOLOGICAI, and mental EFF'liCTS
bounded by the extent and accuracy of the
case-histories recorded, how a given opera-
tion will affect a given individual presenting
a complex of conditions comparable in the
main to that possessed by each member of
the group previously studied.
Let us now consider the specific factors
involved:
a) "fype of social inadequacy in its con-
stitutional or hereditary aspect. Since
eugenical sterilization would naturally be
applied only to those individuals who. are
carriers of defective lines of inheritance, we
would, except in the case of recessive traits,
confine our classes to such individuals as
properly fall within the socially inadequate
group. This limitation presents the follow-
ing classes: (1) Feeble-minded; (2) Insane,
including all types of neuropathic conditions
not otherwise specifically provided for in
this classification; (3) Criminalistic (includ-
ing the delinquent and wayward) ; (4) Epi-
leptic; (5) Inebriate; (6) Diseased (those
with specific hereditary diatheses) ; (7)
Blind; (8) Deaf; (9) Deformed; (10) De-
pendent (from constitutional shiftlessness).
While this is a general primary classifica-
tion, still it must be recast and further
shortened for the present purpose of sorting
case histories into' groups each of which will
be numerous enough for purposes of com-
parison and summary. These social and
biological types are five in niunber: (1) nor-
mal; (3) criminalistic (including the delin-
quent and wayward) ; (3) insane (including
the neurotic and psychopathic, other than
epileptic); (4) epileptic; (5) feeble-minded.
The persons contained in these classes
are those who constitute the larger number
of individuals who are subject to the opera-
tion of the several eugenical sterilization
laws, and for whom in private surgical prac-
tice case-histories involving sexual steriliza-
tion arc obtainable. In this table the term
normal (1) refers to an individual who, on
account of his or her hereditary constitu-
tional make-up, does not belong to one of
the socially inadequate classes previously
listed. Most of the case-histories of this
sort are from private practice, in which the
motives for the operation are in the main
therapeutic. The eiTects of sterilization upon
an individual personally normal are impor-
tant because pedigree studies may demon-
strate in occasional cases such persons are
cacogenic. The term criminalistic (2) refers
not only to a person who has been convicted
of crime and is therefore legally a criminal.
but also to one (not insane, feeble-minded,
or epileptic) whose instincts and inhibitions
are so anti-social that, because of them, his
or her conduct is disregardful of. the laws of
organized society. The term insane (3) ap-
plies to all psychopathic and neuropathic
cases, excepting the feeble-minded and the
epileptic. It includes also the criminal-in-
sane because in the latter class insanity
rather than criminality seems to be the more
fundamental defect. The term epileptic (4)
as here used includes all persons who. are
chronically subject to convulsions. Persons
who are subject to double classification, such
as those who may be both criminalistic and
epileptic, or who possess any other socially
inadequating qualities herein used for classi-
fying purposes, will be grouped under the
class epileptic, regardless of the other handi-
caps, because this is a definite and easily
diagnosed condition. The term feeble-minded
(5) applies to those individuals who are ol
such low mental order that they are unabh
to master the needs and purposes of the
usual activities of life sufficiently to regulate
their conduct appropriately thereto.
b) Sex. Because of the great diflferenc<
in physiological reactions, and in the con-
struction of their reproductive mechanisms
obviously classification on the basis of sei
is one of the most important for the purpose
in hand.
c) Age. It is not disputed that sexual
steriHzation, especially the removal of the
sex-gland, has very different effects when
consummated before puberty than when
wrought after sexual maturity. The effects
of sexual sterilization in old age or beyond
the reproductive period are not especially
pertinent to the present investigation, be-
cause no eugenical purpose could be served
by unsexing an individual who is not a
potential parent. Therefore, so far as age
is concerned, the accompanying case his-
tories are divided into two groups — (a) those
before puberty and (b) those after puberty.
In a complete analysis, made possible only
when many more case-histories have accum-
ulated, a more refined sub-division into the
following classes will be highly useful:
A. Before puberty:
1. Infancy (birth to 4 years)..
2. Childhood (4 to 10 yearsV
3. Early youth (10 years to puberty).
B. Reproductive period:
1. Early reproductive age (puberty to
20 years).
Physiowgicai, and Mental Effects
431
3. Mid-reproductive age (20 years to 35
years).
■3. Late reproductive age (35 years to
climacteric in women, and to ap-
proximately 60 years in men).
C. Past reproductive period:
1. Early years (Climacteric to 60 years
in women, and 60 to 70 years in
men).
3. Sexual old age (Past 60 years in
women, and past 70 years in men).
d) Tjrpe of Operation.
The classification based upon type of oper-
ation will throw the males into two classes
— (1) the less radical, that is cases in wbich
the sex-glands are not removed, but simply
in which the function of their essential drain-
age ducts is destroyed by ligation, severing
or removal, as in vasectomy; (3) the more
radical, in which the sex-glands are removed,
as in castration.
In the female sexual sterilization is much
more serious from the surgical point of view
because under practically all methods now
considered efficacious the operation involves
the opening of the abdominal cavity. But
in the female also there are two degrees of
radicalness in the operation of sexual steril-
ization: (1) the less radical is salpingectomy,
or its equivalent, consisting of the removal
of a portion or all of the Fallopian tubes,
or their permanent ligation; (2) the more
radical is the removal of the sex-gland, that
is, ovariotomy (oophorectomy). Equally
serious with ovariotomy but rarely resorted
to for eugenical motives unless also indicated
as of decided therapeutic value is hysterec-
tomy, or removal of the uterus.
Note: Other types of operations.
Other types of treatment or operation
which might result in sexual sterilization,
such as the application of radium or x-rays,
or the injection of drugs or chemicals, in
either sex, are so little used that case-his-
tories of sufficient number to justify attempts
at generalization are not available.
According to information under date of
March 17, 1921 received from Dr. Arthur
C. Christie, President of the American
Roentgen Rays Society, the effects of steril-
ization by X' Rays are probably nothing
more than psycho-mental derangements.
However, there does not seem to be uni-
formity of opinion on this subject, as Dr.
Halsey J. Bagg, of the Memorial Hospital,
New York, in a letter to the author (Decem-
ber 5, 1931) states:
"* * * There is also a tendency to ques-
tion the statement that the physiological
effects are probably nothing more than
psycho-mental derangements. Physicians I
have spoken to suggest that more serious
internal secretion changes might result from
treating especially younger humans, and
from a eugenic standpoint I suppose this is
just the class you want to reach. Again
only experimentation can answer the ques-
tion."
Other operations, such as scarifying the
horns of the uterus in the female, amputation
of the penis in the male, and hysterectomy
and pan-hysterectomy in the female are not
yet developed to the degree wherein their
use is of certain practicability.
4. TESTIMONY ON THE EFFECT OF
SEXUAL STERILIZATION.
A. PRIMARY TESTIMONY
The conclusions here given in reference to
the effects of sterilization are drawn primari-
ly from a study of 694 individual case his-
tories classified into 73 types of cases in
reference to age, sex, type of operation and
primary eugenical personality, Lack of avail-
able space in this book prevents the presenta-
tion of the abstracts of these histories.
B. SUPPLEMENTARY TESTIMONY.
a) From an address by A. W. Wilmarth,
M. D., Superintendent of the Wisconsin
Home for Feeble-Minded, before the Amer-
ican Association for the Study of the Feeble-
Minded, 1918, entitled "The Practical Work-
ing Out of Sterilization," is quoted the fol-
Ibwing:
"Of the operation it is not necessary to
speak at length. It was uniform in the
members of each sex, and the simplest
possible to accomplish the desired effect.
"In order to give anyone, who cared to,
do so, time and opportunity to restrain the
execution of this law, no operation was per-
formed until nearly two years after its
passage.
"I might state, incidentally, that in the
sixty cases operated on, there were no com-
plications, but recovery was prompt and
complete, and no physiologic change has
been evident in their life, or any apparent
mental change. The sole purpose accom-
plished was that designed — to prevent off-
spring. It is believed that this has been
effectively accomplished.
" In every case, notice has been served on
relatives, or guardians, as required by the
statute, and where objection was made an
operation was not performed in that par-
ticular case. The number who objected was
surprisingly small. ^ * *
432
Physiological and Mental Effects
"We have, so far, seen no cause to regret
the steps we have taken. In a number of
cases we have felt safe in allowing parents
to remove their children on trial, knowing
that they would return them if they could
not be controlled, as has already been done
in one instance. In doing so, we are not
oppressed with the fear that our experience
in two recent cases would be repeated, when
we paroled two girls who had not been
operated on, to apparently competent and
well-intentioned friends, to have them re-
turned, in a short time, pregnant by their
own brothers.
"As to the attitude of the public, a number
of parents have voluntarily requested opera-
tion for their children; many more than have
filed objections. * * *"
b) Havelock Ellis in his book "The Sex-
ual Impulse,'' gives the following summary
of the eflfects of ovariotomy upon the sexual
life of the patients:
"In France Jayle ("Effets physiologiques
de la Castration chez la Femme, " Revue de
Gynecologie, 1897, pp. 403-57) found that,
among 33 patients in whom Ovariotomy had
been performed, in 18 sexual desire remained
the same, in 3 it was diminished, in 8 abol-
ished, in 3 increased; while pleasure in coitus
remained the same in 17, was diminished in
1. abolished in 4, and increased in 5, in 6
cases sexual intercourse was very painful.
In two other groups of cases — one in which
both ovaries and uterus were removed and
another in which the uterus alone was re-
moved— the results were not notably diflfer-
ent.
In Germany Glaveke (Archiv fiir Gynak-
ologie, Bd. xxxv, 1889) found that desire
-remained in 6 cases, was diminished in 10.
and disappeared in 11, while pleasure in in-
tercourse remained in 8. was diminished in
10„anrl was lost in 8. Pfistcr, again (Archiv
fiir Gyniikologie, Bd. Ivi, 1898), examined
this point in 99 castrated women; he remarks
that sexual desire and sexual pleasure in
intercourse were usually associated, and
found the former unchanged in 19 cases,
decreased in 24, lost in 35, never present in
21, while the latter was unchanged in 18
cases and diminished or lost in 60. Keppler
(International Medical Congress, Berlin,
1890) found that among 46 castrated women
sexual feeling was in no case abolished.
Adler also, who discusses this question (Die
Mang^elhafte GeschlechtsempfindunK des
Weibes, 1904, p. 75 et seq.), criticises Gla-
vcke's statements and concludes that there
is not strict relation between the sexual or-
gans and the sexual feelings. Kisch, who
has known several cases in which the feel-
ings remained the same as before the opera-
tion, brings together (The Sexual Life of
Women) varying opinions of numerous au-
thors regarding the eflfects of removal of the
ovaries on the sexual appetite.
In America Bloom (as quoted in Medical
Standard, 1896, p. 121) found that in none
of the cases of women investigated, in which
oophorectomy had been performed before
the age of 33, was the sexual appetite en-
tirely lost; in most of them it had not
materially diminished and in a few it was
intensified. There was, however, a general
consensus of opinion that the normal vag-
inal secretion during coitus was greatly les-
sened. In the cases of women over 33, in-
cluding also hysterectomies, a gradual les-
sening of sexual feeling and desire was
found to occur most generally. Dr. Isabel
Davenport records 2 cases (reported in Med-
ical Standard, 1895. p. 346) of women be-
tween 30 and 35 years of age whose erotic
tendencies were extreme; the ovaries and
tubes were removed, in one case for disease,
in the other with a view of removing the
sexual tendencies; in neither case was there
any change. Lapthorn Smith (Medical
Record, vol. xlviii) has reported the case
of an unmarried woman of 24 whose ovaries
and tubes had been removed seven years
previously for pain and enlargement, and
the periods had disappeared for six years;
she had had experience of sexual intercourse,
and declared that she had never felt such
extreme sexual excitement and pleasure as
during coitus at the end of this time.
In England Lawson Tail and Bantock
British Medical Journal, October 14, 1899,
p. 975) have noted that se.^ual passion seems
sometimes to be increased even after the
removal of ovaries, tubes and uterus. Law-
son Tait also stated (British Gynecological
Journal, Feb., 1887. p. 534) that after sys-
tematic and extensive inquiry he had not
found a single instance in which, provided
that sexual appetite existed before the re-
moval of the appendages, it was abolished
by that operation. A Medical Inquiry Com-
mittee appointed by the Liverpool Medical
Institute (ibid., p. 617) had previously re-
ported that a considerable number of pa-
tients stated that they had suflfered a distinct
loss of sexual feeling. Lawson Tait, how-
ever, throws doubts on the reliability of the
Committee's results, which were based on
Physiowgical and Mentai, Effects
433
the statements of unintelligent hospital pa-
tients.
I may quote the following remarks from '
a communication sent to me by an exper-
ienced physician in Australia: "No rule can
be laid down in cases in which both ovaries
have been extirpated. Some women say
that, though formerly passionate, they have
since become quite indifferent, but I am of
opinion that the majority of women who
have had prior sexual experience retain
desire and gratification in an equal degree
to that they had before operation."
c) Robert Reid Rentoul, M. D. "Race
Culture or Race Suicide." Walter Scott Pub-
lishing Co., Lit., London, 1006, pp. 153-4.
"THE EFFECTS OF STERILIZATION
UPON THE GENERAL AND MEN-
TAL HEALTH."
"No one has yet put forward any
evidence to show that removal of the testes
or ovaries affects the physical or mental well-
being of the person operated upon. Veter-
inary surgeons have not produced any
evidence from the animal world, though mil-
lions of cattle have been castrated. We know,
on the other hand, that animals. improve in
nutrition and become more docile after
castration. Again, history records the fact
that eunuchs attained high social, ptolitical and
military eminence, thus showing that castra-
tion did not weaken their mental powers.
One sometimes hears descriptions— fables
from the East, one may call them — where
eunuchs are described as 'lazy,' 'treacher-
ous,' and 'good for nothing.' I fancy a
goodly number of non-castrated persons
having the above peculiar traits can be found
in English cities . . It is sometimes al-
leged— nay,' gravely stated that castration
of human beings causes insanity! This wild
allegation has no facts to support it. The
shock of any injury, of any operation, may
bring latent insanity to the surface, ovari-
otomy and removal of the testes included;
but these operations are not a cause. In
the Lancet of November 4th, 1905, Dr. Albert
Doran, referring to one hundred operations
in which the ovaries had been removed for
uterine fibroids, states that in two cases cer-
tain mental symptoms appeared, and in these
it turned out, on inquiry, that one patient
was of marked intemperate (alcoholic)
habits, while the other was mentally affected
for several years before the operation. He
also quotes Dr. Picque as stating that eighty-
nine per cent of insane women under his
care suffered from uterine or ovarian com-
plaints.
"I have elsewhere referred to the experi-
ments of Shattock and Seligman, which show
that vasectomy does not interfere with the
development of the secondary sexual charac-
ters of animals, and that castration does not
interfere in any way with their health.
"Dr. Albert Doran has informed me that
an Italian surgeon stated to him that just
as women who suffered from mollitis ossium
became stronger and larger in their bones-
after they had had their ovaries removed, so
it was noticed that the bones of the choir
'castrati' became strongly developed after the
operation. "
d) Martin W. Barr, M. D., in his book on
"Mental Defectives," p. 197, writes as fol-
lows :
"Dr. Everett Flood, superintendent of the
Hospital for Epileptics at Palmer, Mass..
reports twenty-six cases in which asexuali
zation was performed, some being circum
cised at the same time, with no bad results.
With twenty-four the cause for operating
was epilepsy and persistent masturbation.
One-half were under fourteen, two over
twenty, and the remainder about fifteen
years old, the mental and moral condition
being good in two, fair in nine, but poor in
the others. Observation for some years
after operation, noted mental condition im-
proved in only three cases, and moral con-
diton in only four — two kleptomaniacs re-
formed, one who was salacious improved,
and one who was solitary acquired a more
social disposition. The temper was improved
in all but four cases. The sexual appetite
seemed to disappear in all but two cases,
and appeared in these only periodically. The
effect upon the epileptics was favorable;
with some the attacks ceasing altogether or
returning, as in a single case, after immunity
of two years.
"Pfister reports one hundred and sixteen
women operated upon. The menopause fol-
lowed in 94.8 per cent and moKmen men-
struale in 30 per cent. Sexual desire was
extinguished in 53 per cent; diminished in
30 per cent; undiminished in 36 per' cent.
Atrophy of the uterus was constant, but of
the vagina and vulva, less frequent. Atrophy
of the mammary gland was noted in 39
women. The tendency to obesity was in-
creased. For some time after the operation,
the disposition was changed for the worse,
but only in exceptional cases was the change
permanent. The causes for operation were
434
Physiological and Mental Effects
myoma, dysmenorrhea, hysteria and hystero-
epilepsy; cases suffering from the first named
receiving most benefit. Results show eigh-
teen improved, and eighty-seven cured by
the operation. My own experience, although
limited, has been decidedly favorable; three
cases of oophorectomy and three of testiec-
tomy have resulted in improvement mental,
moral and physical — especially marked in
boys. "
e) F. C. Cave, M. D., Winfield, Kansas,
in an article, "Sterilization in Kansas State
Hpme for Feeble-Minded." Journal of Psy-
cho-Asthenics, 1911, xv., page 123, says:
Asexualization performed (oophorectomy
females, in males testiectomy) 58 cases,
males 44, females 14. Done 13 years ago.
There remain now 14 girls, 23 boys. Others
have been taken by death or relatives, no
record of these.
Following answers to questions, submitted
by Dr. Barr of Elwyn institution, based on
observations of these 3 individuals:
Question i. In what proportion of inmates
of your institution do you consider pro-
creation advisable?
Answer: None.
Question 2. In what proportion of the
inmates of your institution do you consider
procreation possible?
Answer: 60%.
Question 3. What would be the probable
effect of asexualization upon their mental
and moral conditions?
Answer: Mentally: I see no change in any
particular. Their school work shows no
marked superiority over those who are in
possession of all their organs.
Morally: They are not addicted to
onanism and other prevalent perversities,
but this is not because their standard of
morality has been elevated; it means the
elimination of physical factors has caused
betterment.
Question 4. What was the effect on their
physical condition?
Answer: Average was 30 years. One
girl has become obese. Menstruation ceased
in all cases with atrophy of uterus. At time
of menstruation, backache, headache and
"bearing down pains'' occur; some have to
go to bed for few days. Breast atrophy noted
in all cases. All desire for sexual intercourse
and all erotic fancies apparently removed.
Several were epileptic, removal of ovaries
having no effect on seizures. No change in
tractability. Skin more fair.
Boys. Three obese, one assumed feminine
type voice, breasts increased in size, loss of
. hair on face, change in body contour, all
desire lost.
Question 5. What operation would you
advise?
Answer: Oophorectomy and testiectomy.
These operations prevent defective offspring,
limit lewdness and vice. If the vas is ligated,
tendency to increase sexual debaucheries, as
danger of conception would be eliminated.
Question 6. At what age is operation
most effective?
Answer: Effect cannot be questioned at
any age. A few were emasculated before
puberty. They show no material difference
from those sterilized early in adult life.
5. SUMHiJARY.
The historical and clinical evidence pre-
sented in this chapter appears to justify the
following getieral statements:
(A) FUNCTIONS OF THE SEX-
GLANDS.
a) The primary physiological function of
the sex-glands is the manufacture of
spermatozoa in the male and ova in the
female.
b) The internal secretions of the sex-glands
govern very largely the development of
the secondary sexual characteristics.
c) The male, being the more highly special-
ized sex, experiences the greater aberra-
tion from normal ontogeny following the
early removal of the sex-glands.
d) The physiological role of the testes and
ovaries (besides their influence over the
primary and secondary sexual structure
and functions), in governing growth,
metabolism and temperamental reactions
(especially sexual), is both very specific
and very great.
(B) EFFECTS OF SEXUAL STERIL-
IZATION.
The wide range of the effects of eugenical
sterilization is a consequence of, first, the
great differences in the personality — com-
plex of the persons operated upon — sex,
age, constitutional make-up, and physiologi-
cal, pathological and mental condition — and
second, of the several surgical types of ster-
ilization-operations employed.
I. Anatomical and Physiological Effects by
Sex, Age, and Type of Operation.
(A) Male,
(a) Vasectomy or its functional equivalent.
(1) The available case-histories of males
vasectomized before puberty are so few in
Physiological and Mental Effects
435
number that the effect of vasectomy in early
youth is not known with certainty. From
the evidence given by physicians' and animal
experiments, it is believed that a boy vasec-
tomized in early childhood would experience
an ultimate if not great atrophy of the prim-
ary sexual organs.
(3) In cases of adolescent or adult males
with normal and undiseased sex-organs,
vasectomy or its physiological equivalent
(that is, severing or occlusion of the vas
deferens) produces very little change in
anatomical structure, in sexual desires or
activity or in any other physiological or
mental functions, other than to cause sexual
sterility.
Vasectomy is reported by reputable phy-
sicians to be remedial in some cases of ex-
cessive masturbation.
(3) In old age,^ vasectomy is successfully
resorted to as a treatment for the ameliora-
tion of the condition of men suffering from
an enlargement of the prostate,
(b) Castration.
(1) A boy castrated in childhood or at
least before puberty becomes an eunuch,
which type of person is a familiar figure in
history and literature.
The removal of both testes in early youth
tends very strongly to stop further develop-
ment of the secondary sexual characteristics.
The beard fails to develop, neither the
thorax nor pelvis assume the masculine form
and, in later life, obesity and docility are
developed. The infantile, or non-masculine,
type of mind seems to persist in most cases.
vSexual desire is entirely absent and aggres-
sive masculinity does not appear.
(3) Castration after sexual maturity is
much more serious surgically than the same
operation performed earlier, but, unlike cas-
tration in childhood, it does not cause a
change in secondary sexual characteristics,
because these have already developed. The
evidence points, however, to the fact that
the absence of the sex-gland removed in
adult life causes in time a slight diminution
or atrophy of secondarj' sexual characters
and activities. Males castrated during adult-
hood are still able to "have connection of a
sort with a woman."
(3) Castration in old age has even less
physiological and psychological consequence
than castration in middle life. Formerly
castration was resorted to in adults for the
1 The so-called "Steinach Operation," liga-
tion of the vas deferens, claims rejuvenating
effects in old men. (H. Benjiman, Am. Med.
N. S., Vol. XVII, pp. 435-443. Aug. 1922.)
treatment of enlarged prostate, but vasec-
tomy was later found to be equally service-
able for this purpose.
(B) Female.
(a) Salpingectomy or its functional equivalent.
d) In girls before puberty, available cases
of the removal of all or a portion of the
oviducts tFallopian tubes), or their ligation
or occlusion or by other means are so few
in number that authentic records are lacking
in quantities sufficient to justify a general
statement as to its effect. By analogy, how-
ever, to the case of salpingectomy during
sexual maturity, it is reasoned that salpin-
gectomy before puberty would not be ac-
companied by any great physiological dis-
turbance or change from the normal devel-
opment of physiological functions other than
to stop reproduction.
(2) Salpingectomy during the period of
sexual maturity in the case of women with
normal and undiseased sex-organs produces
practically no change upon sexual desire or
activity nor upon other physiological or
mental functions other than to cause sexual
sterility.
(3) Salpingectomy after the climacteric
affects the individual only to the extent of
other surgical operations of equal serious-
ness. It causes little or no upset or change
in the emotional or physiological life.
(b) Oophorectomy.
(1) The removal of the ovaries in young
girlhood is so rarely resorted to that gen-
eralization from the records is not so well
founded as in the case of castration in boys.
Generally, however, in mammals, the spay-
ing (removal of the ovaries) of young fe-
males does not effect so great a change in
ontogeny as eary operation in the males
brings about in the latter sex. There is a
tendency, however, for adult females whose
ovaries have been removed in early youth
to become obese and sluggish, and to lack
strong sexual impulses.
(2) Oophorectomy during the reproduct-
ive period has been resorted to principally
because of pathological conditions of the
reproductive mechanism rather than for eu-
genical purposes. It appears to have but
little effect upon the sexual feelings of the
average woman operated upon, but it is
often followed by a considerable physio-
logical and psychological disturbance.
(3) Oophorectomy after the climacteric
affects the woman operated upon in a man-
ner quite similar to that resulting from the
same operation consummated during the
436
Physiologicai. and Mh;ntai< Effects
reproductive period, except that in the case
of the older women it appears as a rule to
be followed by less serious physiological and
mental disturbances, although the surgical
shock may be greater. This class of cases
is of interest in this connection only for
comparative purposes, since no eugenical
purpose is served by sexually steuilizing a
woman who has passed the reproductive
period.
II. Summary of Evidence on the Mental and
Temperamental Effects of Sexual Steril-
ization.
(1) The character of the sexual impulse
in both the human male and female, after
sterilization, is a very complex thing, de-
pending principally upon (a) the complete-
ness with which the genital organs, espe-
cially the sex-glands, are removed, (b) the
age at which the operation is performed,
and (c) the individual peculiarities, both con-
stitutional and acquired, of the person oper-
ated upon. In general the earlier the age,
the more complete the castration, and the
greater the natural sexual coldness of the
individual, the more certainly will the oper-
ation of sexual sterilization destroy or in-
hibit the development of the sexual impulse.
(2) In women to a greater extent than
in men, the persistence of normal sexual
emotions after sterilization depends relative-
ly more upon the individual who is oper-
ated upon, together with her state of health
and individual traits, and relatively less upon
the radicalness of the operation.
(3) Among the socially more unadapted
classes the knowledge of sex- sterility itself
has but little influence upon sex-control,
because such persons are rarely deterred
from sex-relations on account of fear of
parenthood, or of venereal infection. In
many cases their laxity is at the maxniium
both before and after .sterilization. Sexual
sterility is desired by a certain class of
sex-oflfcndcrs, both male and female. Doubt-
less the knowledge of self-sterility eases the
mind of many morally lax persons, but it
is doubtful whether it determines morality
or immorality. In but few cases reviewed
did the patients complain of a sense of
shame or regret because of the loss of
sexual fertility.
(4) Vasectomy of adolescent or adult
males appears to have no substantial effect
either upon the sexual impulse or upon
potentia coeundi.
(5) Castration (the removal of both sex-
glands of either sex) performed before pub-
erty is quite certain to prevent the develop-
ment of the libido sexualis, and makes a
eunuch of a boy, but upon a girl it has a
much less decided eflFect. Castration in adult
life has but little effect upon the sex-impulse,
neither does it change greatly the secondary
sexual characters.
III. Summary of Evidence on Sexual Ster-
ilization as a Therapeutic Agent.
(1) Castration in either sex as a cure or
•ameliorative remedy for feeble-mindedness
or epilepsy has not justified itself, but on
the other hand the removal of the sex-
gland does not appear to destroy or prevent,
to any appreciable extent, the development
of purely intellectual activitj' to the degree
indicated by the pre-operative promise of
the individual. The internal secretions of
the sex-glands appear much more closely
related to the emotional than the intellectual
functions.
2. "The attempt to cure masturbation and
erotic tendencies by this operation (oopho-
rectomy) must be regarded as useless and
unscientific. * * *" Kelly-Noble: Gynecology
and Abdominal Surgery. W. B. Saunders Co.
1907. Vol. I, p. 612.
(3) In cases of persons with normal and
undiseased sex-organs, the value, as a rem-
edy for mental or nervous disorders, of sex-
ual sterilization of any type performed upon
adults of any type, of either sex, is so little
that it is not indicated in the course of the
psychiatric treatment.
(4) In cases of pathological sex-vicious-
ness in children, the early removal of the
sex-gland appears to be ultimately remedial
of the particular ill, but at the price of
eunuchism.
("i) In cases of persons with abnormal or
diseased sex-organs, psychiatric and phy-
siological benefits have been wrought by
operations which incidentally involved sexual
sterilization, but there appears to be relative-
ly little of intrinsic value in the fact that
the sex-organs were the seat of irritation or
infection, because, in other similar cases, the
removal of local troubles in other organs has
rendered similar relief.
CHAPTER XIV.
THE LEGAL BIOLOGICAL AND PRACTICAL REQUIREMENTS FOR
AN EFFECTIVE EUGENICAL STERILIZATION LAW.
Introduction ^oa
A. Commonly Stated Objections to the Existing Sterilization Laws.
1. In advance of public opinion 438
2. Violation of the Bill of Rights 438
3. Ill-adapted to their implied purposes ; 439
4. Inadequate executive machinery , . . 439
5. Lack of cooperation among sociologists 439
6. Encourages immorality 439
B. Requirements for an Effective Eugenical Sterilization Law.
a. Legal Requirements.
1. Class legislation 440
8. Due process of law 441
3. Cruel and unusual punishment 443
4. Bill of attainder 443
5. Twice in jeopardy of life and limb 443
6. Ex post facto 443
b. Biological or Eugenical Requirements.
1. Standard for legal parenthood 443
2. The line of demarcation between Eugenic and Cacogenic 443
3. Insurance against reproduction by cacogenic persons 443
4. Development of eugenic standards 443
5. Suspension of order for eugenical sterilization 443
6. Adequate evidence of cacogenesis 443
c. Practical Requirements.
1. Well-trained executive 443
2. Due provision for prompt court procedure 443
3. Ample funds for enforcement 444
4. Due provision for modern surgical work 444
Conclusion 444
438
Requirements eor an Eeeective Sterilization Law
INTRODUCTION.
The twenty-three legislative enactments
in reference to sexual sterilization which
fifteen different American states have placed
on their statute books during the past fif-
teen years (1907-1921) have served a valu-
able experimental purpose. They have pro-
vided a laboratory for working out a model
law which, it is believed, can be made to
function as intended, and which also will
conform to sound biological, social and legal
requirements.
A. COMMONLY STATED OBJECTIONS
TO THE EXISTING STERILIZA-
TION LAWS.
The accompanying chapters review the
history and describe the principal features
of the several sterilization laws which the
different states have enacted; but, if the
whole field is to be covered, this analysis
should be supplemented by a consideration
of a number of common objections based
on policy and the practical working out of
the laws.
ejection has been made:
1. That the existing sterilization laws are
in advance of public opinion. In a measure
this is true. This could, however, hardly
be set forth as a valid objection sufficient
in itself to justify no further immediate
efforts along this particular line of social
endeavor. The law must not only follow
the dictates of public opinion but in many
cases legislation may well lead, or at least
crystallize into statutory form, a vague idea
of a possible social amelioration, and if such
a statute is well grounded in truth and com-
petency, the public will stand back of it.
2. That existing laws violate the essentials
of the so-called bill of rights. Several of
the sterilization laws, as drawn, have been
held to run counter to Section 1, Article
XIV of the Amendments to the Constitution
of the United States, which guarantees to
all citizens of each state the equal protection
of the laws. In test cases the courts have
stated that a state may, if it chooses, exer-
cise its undoubted legislative right to im-
prove the racial qualities of its citizens by
eugenical sterilization of certain natural
classes of degenerates; but, to differentiate
between the members of such a natural class
who are inmates of custodial institutions
and those who live in the population at large
is, in the opinion of at least three courts.
"class legislation". The subjects of these
three test cases were respectively epileptic
(New Jersey), feeble-minded (New York)
and feeble-minded (Michigan). Since all of
those legally insane and legally criminal are
theoretically under the custody of the state,
a test case involving one or both of these
classes will be of special interest and con-
cern to eugenicists. Would the application
by law of eugenical sterilization only to such
insane and criminals as are in institutions
constitute "class legislation"?
Objection is made that in ordering steril-
ization, action is based upon the unproven
future rather than upon the proven past,
which type of procedure is contrary to the
spirit of our institutions, which does not
permit judicial declaration in reference to a
particular individual unless the facts are
proven beyond doubt. The fact which in-
spires a state to order eugenical sterilization
is the demonstrated proof that a given in-
dividual is of such an undesirable make-up
of hereditary traits that the propagation of
his kind would, beyond peradventure, con-
stitute a serious menace to the welfare of
the state. The eugenicist is now "able to
prove to the scientific world, to legislatures
and to the courts of the land that by the
application of certain pedigree principles to
the pedigree findings in a particular case,
it is possible to determine the hereditary
potentialities of a given individual, and thus
to demonstrate the eugenical menace of a
given person.
Prevention of social menace is an essent-'al
purpose of law. Compulsory vaccination,
quarantine, and the punishment of criminals
as an example in stopping crime, are cases
in which the law ma\- act in order to prevent
occurrences or conduct inimical to the wel-
fare of the community. Self-preservation
is the first law of nature with organized
society as well as with individuals. If our
society is to ^persist, it must purge itself of
socially inadequate individuals — those who
do not contribute to the welfare of the social
organization.. If eugenical sterilization or
eugenical segregation in custodial institu-
tions will protect the race against degen-
eracy, then such measures would appear to
be well within the police power of the state.
While a general application of sterilization
to a natural typa of defective or degenerate
throughout the commonwealth seems a rad-
ical measure, still it is a condit'on which
in the long run will make for eugenical or
racial progress, as well as for most punc-
Requirements eor an Effective Sterilization L,aw
439
tilious regard for "the bill of rightf " Other
items of the "bill of rig-hts" i.i their relation
to eugenical sterilization are di;^<.■us^^■d nndcr
the subject of "The Legal l\.<quironieiits
for an Effective Eugenical .Sterilization
Law." (p. 440.)
3. That the statutes as drawn are ill-
adapted to their stated or implied purposes.
This is in a large measure a true indictment;
but it must be remembered that these early
statutes are experimental; their practical
working out will set forth weak points and
will enable the legislators of the states to
benefit from their study. It must be further
remembered that only lecently, within the.
last decade, have the laws of human hered-
ity and the pedigree-method of studying
anti-social families advanced to the stage
of a science with practical and safe rules
for predicting, within certain limits, the
nature of the offspring to be expected from
given matings, so that criteria for judging
potential parenthood of degenerate offspring
is now for the first time available. Legis-
lators may now set standards for the natural
heritable qualities of legal parenthood.
There is no reason why eugenical laws may
not prove as effective in improving the nat-
ural physical, mental and temperamental
qualities of the human race as are the rules
of breeding in conserving and developing
better blood in our domestic plants and
animals.
4. That the executive machinery provided
to enforce these laws has been bad. This,
also, is a true and serious objection, and.
there is little to be said in rebuttal. These
statutes have not, as a rule, made adequate
provision whereby the services of competent
and honest men would be assured in exe-
cuting their provisions. In most cases offi-
cers who are busy with administrative duties
of the most exacting nature were made, ex-
officio, the' executive agents of the steriliza-
tion statutes. And, further, in many laws
the chain of rriandatory provisions has pre-
sented many gaps; thus, sterilization is
offered as a i-emedy optional, in the hands
of certain' of the state's custodians of its
defective or deficient citizens. Furthermore,
appropriations afe in most cases quite inade-
quate to the service demanded. In New
York the Commission appointed appears to
have expended in per diem and traveling
expenses practically the whole appropriation
without doing any Serious work as contem-
plated by the statute. This, however, is a
matter for the chief executive officer of the
state to take in hand; but if the law provides
an executive agency with certain profes-
sional qualifications and with no other duties
save to enforce the law, then in most states
certainly the actual enforcement would be
much more competent and thorough than
under the political and ex-officio systems
now prevalent.
5. That there is a lack of cooperation, and
even considerable antagonism, between the
advocates of more extensive and thorough
segregation of social inadequates on the' one
hand, and the advocates of eugenical steril-
ization on the other. There can, however,
be no real conflict here. Most of the present
laws are at fault in providing for steriliza-
tion of inmates of institutions only. The
lack of logic in this provision is obvious.
It is while the individual of degenerate in-
heritance is in the custody of the modern
institution that society is insured against
reproduction by such person. Sterilization
ought to, and must under the recent court
decisions, apply with equal force to degen-
erates within custodial institutions and those
in the population at large. A just method
in reaching the ends sought would apply
sterilization to persons in the population at
large, immediately upon the official declara-
tion of their cacogenesis, and while order-
ing the sterilization of the same cacogenic
types in custodial institutions, in these latter
cases the order for the actual operation or
treatment might well be suspended until the
individual is about to be released or paroled.
If pending such time the particular caco-
genic person died or passed the reproductive
period, he or she would cease to be caco-
genic, and even if still living and returned
to the population at large, would not con-
stitute an eugenical menace.
Sterilization can never take the place of
segregation. Neither is there any likelihood
that the support of segregation in modern
institutions and colonies will be greatly in-
terfered with, so far as the inad«quates
themselves are concerned, by sterilization.
Sterilization and segregation are both work-
ing for social amelioi-ation. Segregation
takes the immediate problem, and should
have unbounded support. Sterilization is a
long-term investment and looks toward re-
ducing the necessity in future generations
of custodial care and treatment.
6. That Sexual Sterility Encourages Im-
morality. There is one other objection to
sterilization which its opponents present,
namely that the possession of sexual fertility
440
RfiQUIREMBNTS FOR AN EFFECTIVE STERILIZATION LaW
on the part of both men and women, but
principally on the part of women, prevents
the over-indulgence in the sexual act, and
thus acts as a moral stay. In reply it must
be said that for the most part the persons
who will come under the reach of a care-
fully drawn and executed sterilization law
will be those who are as a rule not re-
strained from sexual indulgence on account
of fear of parenthood. But in cases wherein
this objection is valid, special pains must
be taken by social agencies to remedy the
situation to the greatest extent possible.
And finally the eugenicist answers that this
particular danger, which may exist to some
degree, must be looked upon as an undesir-
able incident in the operation of the law,
but of not sufficient moment to prevent the
operation of the whole statute, from which
so much future good is to be expected.
B. THE REQUIREMENTS FOR AN
EFFECTIVE EUGENICAL STERIL-
IZATION LAW.
All of the foregoing objections, and pos-
sibly others, should be considered and duly
weighed in future legislation. In drafting
the model statute an eflfort has been made
to benefit by a careful study of the virtues
and defects of the existing laws, including
the above-listed objections. These pioneer
and experimetal statutes have been extreme-
ly useful specifically in bringing to light
the difficulties in locating socially inadequate
individuals and potential parents of such,
and in learning what type of executive ma-
chinery is most eflfective in enforcing the
law, and will, at the same time, secure the
greatest cooperation on the part of the in-
dividuals and families directly affected.
These statutes have also furnished test cases
in which the courts have clearly expounded
the legal right of a state to exercise its
police power in attempting to improve the
racial qualities of its citizens by eugenical
sterilization.
a. Legal Requirements. The power of the
state to limit, in the interest of racial better-
ment, the reproduction of certain individual.^
characterized by defective hereditary trait.s.
is undoubted. The means used in exercising
this power is a matter of legislative policy
which lies with the legislative authority ot
the state. The only limitation which the
courts have imposed upon such authority in
applying this particular social remedy, is
that due regard must be had for the so-called
bill of rights. Any infringement upon per-
sonal liberty, which is, of course, charac-
teristic of every statute dealing with per-
,sons, must be balanced in an equitable man-
ner by the returns in benefit to the general
welfare of the people. Each of the follow-
ing constitutional guarantees has, according
to the courts, been violated by one or more
sterilization laws, and must consequently
be reckoned with in the future . statutes.
1. Class Legislation. Section 1 of Article
XIV of the Constitution of the United
States guarantees to all citizens of all of the
states the equal protection of the law. In
New Jersey, New York, Michigan, and Iowa
the courts have held that the statutes in
each of these states were applicable to such
narrow, unnatural and artificially designated
classes that each constituted a violation of
this general provision. This, then, appears
to be the only great stumbling block from
which eugenical and therapeutic — but not
the punitive — sterilization statutes have
fallen to their invalidity, and consequently
new laws must take g^reat pains to avoid
similar disaster. The principle limitations
and unnatural classifications have been as
follows: First, applying the law to inmates
of institutions and not to equally degenerate
individuals in the population at large. Sec-
ond, in applying the law to one natural class
of undesirable parents, such as the feeble-
minded or epileptic, and not including with
them all other classes of hereditarily equally
defective persons. But this last objection
appears not to have been emphasized so
strongly by the courts as the first. Both
of them, however, are met in the model law
by making all individuals of a given hered-
itary degeneracy, regardless of whether in
institutions or in the population at large,
subject to the same eugenical tipeatment.
and second, by including in the operation of
the statute all types of degenerates which
modern investigations have proven to be
socially ineffective primarily because of de-
fective inheritance.
There is one other feature of class dis-
tinction in the application of eugenical laws,
which should be discussed. It is contended
without being confuted that the degenerate
blood of the country is controlled largely
by the number of degenerate women; that
in the lower strains of humanity the degen-
erate women reproduce to full natural ca-
pacity; that if reproduction were made im-
possible for the degenerate members of this
sex, eugenical requirements of the situation
would be met. This is true to the following
extent: Degenerate Women may consort with
RKquiremEnts for an Effective Steriwzation Law
441
either degenerate or normal males, but if
the degenerate woman were sterile, there
would, of course, be no offspring, and on
the other hand, a degenerate male is limited
in sexual relations to degenerate females.
Thus, if the eugenical problem were one
which concerned only the oflFspring of in-
dividuals personally degenerate, the argu-
ment for female sterilization only would be
much sounder than it really is; because, as
a matter of fact, not all potential parents of
degenerate offspring are, themselves, per-
sonally degenerate. The matter of pedigree
and the rules of the transmission of degen-
erate qualities must be considered, and since
degeneracy, so far as possible offspring are
concerned, lurks in many normal parents, the
only sound method is to apply eugenical
sterilization not to degenerate females alone,
nor to degenerate males and females, but to
all persons who are cacogenic within the legal
definition, regardless of their own normal
or degenerate personality. Such cacogene-
sis is to be determined, of course, by due
process of law upon the evidence presented
by pedigree-studies.
But all this is a matter of policy. The
legal question is, would it be an infringe-
ment on the constitutional provisioits against
"class legislation'' to apply sterilization to
one sex and not the other. If a state so
chose, it could doubtless make such a statu-
tory provision which would stand the tests
of the courts. The reason for believing this
is, that in Wisconsin the statute requiring
a medical certificate showing freedom from
venereal disease as a prerequisite to mar-
riage, from the male only, and not from the
female, was held (Peterson v. Widule, 157
Wis. 641) "not to constitute 'class legisla-
tion,' " but to be constituti(ftially sound, and
becaitse of the greater menace and suscepti-
bility of the male in this particular case,
to offer a benefit to the general welfare
entirely commensurate to the apparent in-
fringement on personal liberty.
The authority of the state to limit the
application of eugenical sterilization to a
given type or natural class of degenerates
is maintained in the New Jersey law, which
declares that (Section 6, Chapter 190, Laws
of 1911) "If any provision of this act shall
be questioned in any court, and the provi-
sions be held to be unconstitutional and
void, such determination shall not be
deemed to invalidate the entire act, but only
such provisions thereof with reference to
the class in question as are specifically under
review and particularly passed upon by the
decision of the court."
The New Jersey law was tested before
the courts and was attacked on the ground
of "class legislation", the principal objec-
tions being that it applied to a natural class
of defectives in institutions and not to the
same class in the population at large. Thus
theoretically the New Jersey law is still
applicable to all types of defectives named
in it except to epileptics, a person of this
type having been the subject of the test
case. This particular limitation of court
purview which the statute itself provided
was not discussed in the decision which
declared the act unconstitutional.
Summary: — (a) It is probable that epilep-
tics, feeble-minded, criminals, insane, or any
other natural group of degenerates of a defi-
nitely described degree of degeneracy, each
as a single class, could be made the subject
of eugenical sterilization without infringing
upon the constitutional requirement against
"class legislation".
(b) Because, as previously stated, the
terms "insane" and "criminal" are, in the
eyes of the law, applicable only to such per-
sons as by due process of law have been
declared insane or criminal, it is probable
that the judicial objection to limiting eugen-
ical sterilization to the inmates of certain
custodial institutions would lose much of its
validity if laws so limited applied to the
criminal or insane classes only.
(c) The legislative limitation of eugenical
sterilization to one sex would probably be
constitutional.
2. Due Process of Law. In enforcing any
statute which calls for the regulation or
modification of conduct on the part of citi-
zens, or requires any particular behavior on
their part, or applies any particular remedy
to them, the application of law must itself
be made with "due process of law". In
cases in which the infringement upon per-
sonal liberty is small, due process ol law is
generally held to be satisfied by ministerial
or administrative discretion; but in cases
wherein the infringement is great, due pro-
cess of law implies court procedure, with
the right to be heard, and the decision based
solely upon the law and the evidence, in-
volving, in the most serious cases, a deter-
mination, of the facts by a jury. In all such
cases the burden of proving an infringement
upon the law must rest with the state. It
would, however, lie entirely within the au-
442
Requirements for an EeeectivE Sterilization Law
thority of the state to enact a statute under
which as a prerequisite to the granting ot a
marriage license the candidates would be
required to prove to the satisfaction of a
court the possession on their part of hered-
itary traits which are of value to the state,
and which are not degenerated to the degree
of cacogenesis defined by law. Such a
proof might well insure the granting by the
state of the right of the particular candidates
to reproduce under the marriage covenant.
But, since sterilization laws will doubtless
be applied to a particular class of undesirable
parents which must be found in the popula-
tion by officers of the state, it follows that
the state must assume the burden of proving
that the particular person nominated for
sterilization falls within the specifications of
forbidden parenthood set by the particular
statute. It is clear, from the decisions ren-
dered in the test cases, that the state will
look upon eugenical sterilization as fraught
with ends so fundamental in nature and so
liable to abuse that in each particular com-
pulsory case due process of law will require
court procedure, with a decision based upon
the law and evidence. The legislative and
court history in Iowa leads to the conclusion
that a state may provide for the eugenical
sterilization of certain very limited classes
provided the consent of the individual or
his or her family may be secured, and that
in such cases due process of law will not
imply court procedure. There is another
reason for requiring procedure in each par-
ticular compulsory case, and that is, because
sterilization, in order to be eugenically effec-
tive, need not be a matter of extreme haste,
as is necessary in the case of vaccination or
quarantine; but, on the other hand, the facts
of the matter as determined by pedigree-
study can be learned only by considerable
deliberation, especially in those cases in
which the potential parenthood of degen-
erates is possessed by persons who them-
selves are normal.
3. Cruel and Unusual Punishment. Eugen-
ical sterilization should have absolutely no
element of punishment in it. It is true that
there have been attempts in this country to
impose sterilization as a particularly ap-
propriate punishment for sexual crimes, and
also for cimes which seem to connote gen-
eral criminal tendencies. The decision of
the United States District Court in the
Nevada case seems to indicate that as a rule
the American states will not tolerate punitive
sterilization. If as a punishment vasectomy
is not cruel, it is at least unusuaL A possible
infringement of the provision against cruel
and unusual punishment is made by eliminat-
ing the punitive element, and by applying
eugenical sterilization to all hereditary de-
generates of types specified by legislative
enactment, that is, to all persons legally
declared to be cacogenic (see p. 447), regard-
less of whether these particular individuals
have violated the criminal law and are living
in prisons, or whether they are living in the
population at large. Because, then, there
being no punishment in eugenical steriliza-
tion, it cannot constitute "cruel and unusual
punishment."
4. Bill of Attainder. A bill of attainder
applies, only to punishment. It is essentially
a legislative enactment ordering a given
punishment meted out to certain named in-
dividuals, or a certain named, very restricted
and unnatural group of individuals. In Iowa
the second sterilization law was held un-
constitutional by the Federal Courts because
it selected certain classes of criminals in the
penitentiary, namely, those twice convicted
of felony, and subjected them to sterilization
as a punishment. It is obvious that this
objection can be met by sterilization funda-
mentally eugenical, and to no degree puni-
tive, in nature and consummation.
5. "Twice m Jeopardy of Life or Limb."
In Iowa, in the case above mentioned, the
statute was declared to constitute, also, plac-
ing an individual "twice in jeopardy of life
or limb." Had the individual felon been
ordered sterilized as a part of his original
sentence at the bar, his sterilization would
not then constitute placing him "twice in
jeopardy of life or limb.'' In the state of
Washington th<i first law was held con-
stitutional because the order for sterilization
was part of the sentence at the bar. Eugenical
sterilization, being non-punitive, would not
be subject to this particular objection.
6. £.1- Post Facto. The Iowa statute was
objected to, also, because it applied punish-
ment to individuals for crimes at least some
of which were committed before the enact-
ment of the law, and therefore such a statute,
when applied to the particular individual,
would constitute an ex post facto law. Hero
again the matter of eugenical sterilization is
not concerned, because it is not punitive.
Certainly no court would hold the appli-
cation of a sterilization law unconstitutional
in applying it to insane persons who became
insane before, the enactment of the statute.
Requirements eor an EeeectivE Sterilization Law
443
The whole spirit of the law in avoiding ex
post facto statutes is served, if observed in
criminal law only.
Finally, the state must take it upon itself
to prove to the satisfaction of the court or
jury that the particular individual nominated
for sterilization is, on account of his or her
degenerate hereditary qualities, a serious
menace to the racial qualities of the next
generation. If in legislation and executive
practice all of these foregoing requirements
are met, certainly no one, from the point of
view of constitutional law, could make valid
legal objection to a sterilization statute en-
acted for purely eugenical reasons.
(b) The Biological or Eugenical Require-
ments. In an effective sterilization law not
only must the legal requirements be met,
but the biological factors must receive due
consideration.
1. The law should establish a standard of
hereditary excellence in physical, mental and
moral traits for legal parenthood in the
state.
2. The logical line of demarcation for such
purposes should be that which, due to hered-
itary difference, separates the socially valu-
able from the socially menacing. In turn
the criterion for distinguishing social value
from social menace is to balance an indi-
vidual's life conduct and potentiality as a
parent of socially valuable and socially
menacing offspring. If as a whole the indi-
vidual's life and his or her potential progeny
are demonstrably an asset to the organized
social life of the state, such individual should,
if the question arose, legally be declared to
be a eugenic person, the germ-plasm of whom
should be conserved and proliferated as the
most precious possession of the state. If,
however, the resultant of such balancing
demonstrates the individual and his or her
possible progeny to entail a burden upon the
organized social life of the state, such person
should legally be declared to be a cacogenic
person, and as such should be forbidden to
reproduce.
3. If, on account of hereditary degeneracy,
an individual is by due process of law demon-
strated to be a cacogenic person, he or she
should be liable to eugenical sterilization,
and actually should be made sexually sterile
unless the state receives other and ample
insurance against his or her reproduction.
4. The state might well set a relatively
low standard at first. Later, as its executive
machinery becomes more effective, and the
laws of human inheritance more definitely
known, and the location of degenerate families
more certainly established in the particular
state, the requirements could and should, in
the interests of racial betterment, be raised.
5. So long as a cacogenic person is pro-
tected against exercising his or her repro-
ductive function, the order, for sexual sterili-
zation may, from the eugenical point of view,
be held in abeyance. .Such protection we
find in case of inmates of our better custodial
institutions, but when inmates of such in-
stitutions who shall have been legally de-
clared unfitted for parenthood, are about to
be discharged or paroled, eugenical sterili-
zation should be applied.
6. It is essential that potential parents of
defectives of a certain qualitative and quanti-
tative standard of degeneracy, that is those
legally declared to be cacogenic persons, be
sterilized, regardless of whether such indi-
viduals personally are defective mentally,
ph3fsically or morally. The evidence for the
legal declaration of cacogenesis should be
based upon scientific pedigree-studies.
(c) Practical Requirements. An eugenical
sterilization law may meet all of the require-
ments of constitutional law and provide all
of the factors named as biologically neces-
sary, and still be a failure. An effective law
must make provision for honest and com-
petent administration. There are many gaps
in the executive chain in most of the existing
statutes. In the administration of some there
is evidence of dereliction, but for the most
part an inadequate agency has been provided
by the law for its own execution. The
history of the administration of these laws
points to the following legislative needs:
1. The principal officer of the law should
be a trained eugenicist. He should be well
paid, and should be required to devote his
entire time and attention to the duties of
his office.
2. Due provision should be made for direct
court procedure which will meet all of the
legal requirements for "due process of law,"
and will, at the same time, insure a prompt
and fair decision, whether in the particular
case the nominee for sterilization is, as
charged, a cacogenic person. Some of the
test cases were years in reaching a final
decision. This may be well enough in test
cases, but in practical administration an ex-
peditious decision is fundamental, not only
to justice, but also to effective administration.
444
Requirements eor an Effective Sterilization IvAW
Such determination should be a matter of
days and weeks, not of months and years.
3. Ample funds should be provided for
salaries and field expenses of trained field-
workers skilled in analyzing human charac-
ter and in tracing the descent of"given traits
in the family tree. The State Eugenicist
should have ample funds for office mainte-
nance, and special legislative solicitude should
be given the compiling and maintenance of
pedigree-records.
4. Due provision should be made for
modern, skillful and humane surgical prac-
tice in executing the orders for eugenical
sterilization. The State Eugenicist should
be the responsible agent of the state in mak-
ing contracts for surgical work involved witn
competent surgeons.
Conclusion. With due heed to the legal,
biological and practical considerations above
listed, there is every reason to believe that
the greatest benefit would accrue to the
natural hereditary qualities of future gen-
erations from a law providing for the eugen-
ical sterilization of certain hereditary de-
generates and defectives.
The accompanying model statute (Chapter
XV) has been worked out after making a
careful study of the motives, the sterilization
standards, the executive and legal processes,
the legislative histories, the practical working
out, general objections, and .the litigation
resulting from the twenty-three sterilization
laws which have thus far been enacted by
fifteen diflferent states.
CHAPTER XV.
MODEL EUGENICAL STERILIZATION LAW.
A. Principles Suggested for a Standard State Law 446
B. Full Text for a Model State Law.
Section i. Short title 44g
Section 2. Definitions.
a. Socially inadequate person 446
b. Socially inadequate classes 446
c. Heredity 447
d. Potential parent 447
e. To procreate 447
f. Potential parent of socially inadequate offspring 447
g. Cacogenic person -. 447
h. Custodial institution 447
i. Inmate r 447
j. Eugenical sterilization 447
Section 3. Office of State Eugenicist 447
Section 4. Q'Ualificaiiions of State Eugenicist 447
Section 5. Term of Office, Appointment arid Responsibility 447
Section 6. Seal 447
Section 7. Duties of State Eugenicist.
a. Field surveys 448
b. Further examinations 44b
c. Roster custodial institutions 448
d. Case-histories 448
e. Records State Eugenicist's office 448
f. Other duties 448
Section 8. Cooperation by custodial institutions 448
Section 9. Power to administer oaths and make arrests 448
Section 10. Opinion of State Eugenicist 448
Section 11. Appointment of date for hearing 449
Section 1 3. Notification of parties concerned 449 .
Section 13. State's legal counsel ; . 449
Section 14. Determination by jury 449
Section 15. Judgment 449
Section 16. Appeals 450
Section 17. Type of eugenical sterilization 450
Section 18. Manner of consummation 450
Section 19. Liability ■. 450
Section 20. Illegal destruction of reproductive functions 450
Section &1. Punishment of responsible head of institution for dereliction 450
Section 22. Supremacy of this act 451
Section 23. When efifectixe 451
C. The Federal Government and Eugenical Sterilization.
a. Principles suggested for a Federal Statute 451
b. Comment 451
446
MoDEi, EuGENiCAL Sterilization Law
A. PRINCIPLES SUGGESTED FOR A
STANDARD STATE LAW.
If may be safely stated that the experi-
mental period for eugenical sterilization legis-
lation has been passed so that it is now pos-
sible to enact a just and eugenically effective
statute on this subject. The following out-
line sets forth the underlying principles
which should guide such a law.
Persons Subject. AH persons in the State
who, because of degenerate or defective
hereditary qualities are potential parents of
socially inadequate offspring, regardless of
whether such persons be in the population
at large or inmates of custodial institutions,
regardless also of the personality, sex, age,
marital condition, race, or possessions of
such person. Standards established and
terms defined by the statute.
Executive Agencies Provided. State
Eugenicist who shall devote his entire time
and attention to his office, aided by an ample
corps of assistants, selected by appointment
or civil service according to the customs of
the particular state.
Basis of Selection: Procedure. 1. Investi-
ation by State Eugenicist upon his own
initiative or upon complaints lodged or in-
formation given by an official, an organiza-
tion or a citizen. 3. Opinion concerning a
particular individual in reference to "potential
parenthood of socially inadequate offspring"
rendered after scientific investigation, by
State Eugenicist to Court of Record. 3. Early
date set by court for hearing case. 4. Court
to notify and summon interested parties. 5.
Due provision for legal counsel for the de-
. fendant and for trial by jury. 6. Judgment:
Order for eugenical sterilization if the con-
tention of the State Eugenicist is upheld.
7. Execution of the order under the super-
vision and responsibility of the State Eugen-
icist. S. In case of inmates of institutions,
execution of order may be suspended until
inmate is about to be released, allowinu:
ample time for convalescence. !). Provision
for the study of Incntal, moral, physiological,
social and economic effects of different types
of sterilization.
Type of Operation Authorized. 1. "Sur-
gical operation upon or medical treatment
of the reproductive organs of the human
male or female in consequence of which the
power to procreate offspring is permanently
nullified." 2. Specific type of operation or
treatment in each case to l)e determined by
the State Eugenicist upon the advice oi
duly qualified physicians and surgeons. 3.
Due provision for safe, skillful and humane
operation and treatment.
State's Motive. Purely eugenic, that is, to
prevent certain degenerate human stock
from reproducing its kind. Absolutely no
punitive element.
Appropriations Available for Enforcing the
Act. Ample appropriations for the mainte-
nance of the activities of the State Eugen-
icist as a permanent and effective institution.
B. FULL TEXT FOR A MODEL
STATE LAW.
AN ACT to prevent the procreation of
persons socially inadequate from defective
inheritance, by authorizing and providing for
the eugenical sterilization of certain potential
parents carrying degenerate hereditary quali-
ties.
Be It Enacted By The People Of The
State of that:
Section 1. Short Title. This Act shall be
known as the "Eugenical Sterilization Law."
Section 2. Definitions. For the purpose
of this Act, the terms (a) socially inadequate
person, (b) socially inadequate classes, (c)
heredity, (d) potential parent, (e) to pro-
create, (f) potential parent of socially in-
adequate offspring, (g) cacogenic person,
(h) custodial institution, (i) inmate, and (j)
eugenical sterilization, are hereby defined
as follows:
(a) A socially inadequate person is one
who by his or her own effort, regardless of
■ etiology or prognosis, fails chronically in
comparison with normal persons, to maintain
himself or herself as a useful member of the
organized social life of the state; provided
that the term socially inadequate shall not be
applied to any person whose individual or
social ineffectiveness is due to the normally
expected exigfcncics of youth, old age, curable
injuries, or temporary physical or mental
illness, in case such ineffectiveness is ade-
quately taken care of by the particular family
in which it occurs,
(b) The socially inadequate classes, regard-
less of etiology or prognosis, are the follow-
ing: (1) Feeble-minded; (2) Insane, (in-
cluding the psychopathic); (3) Criminalistic
(including the delinquent and wayward);
(4) Epileptic; (5) Inebriate (including drug-
habitues); (6) Diseased (including the tuber-
culous, the syphilitic, the leprous, and others
with chronic, infectious and legally segre-
Model Eugenical Sterilization Law
447
gable diseases); (7) Blind (including those
with seriously impaired vision); (8) Deaf
(including those with seriously impaired
hearing) ; (0) Deformed (including the
crippled) ; and (10) Dependent (including
orphans, ne'er-do-wells, the homeless, tramps
and paupers).
(c) Heredity in the human species is the
transmission, through spermatozoon and
ovum, of physical, physiological and psycho-
logical qualities, from parents to offspring;
by extension it shall be interpreted in this
Act to include also the transmission post-
conceptionally and ante-natally of physiolog-
ical weakness, poisons or infections from
parent or parents to offspring.
(d) A potential parent is a person who
now, or in the future course of development,
may reasonably by expected to be able to
procreate offspring.
(e) To procreate means to beget or to con-
ceive offspring, and applies equally to males
and females.
(f) A potential parent of socially inade-
quate offspring is a person who, regardless
of his or her own physical, physiological or
psychological personality, and of the nature
of the germ-plasm of such person's co-
parent, is a potential parent at least one-
fourth of whose possible offspring, because
of the certain inheritance from said parent
of one or more inferior or degenerate phy-
sical, physiological or psychological qualities
would, on the average, according to the
demonstrated laws of heredity, most pro-
bably function as socially inadequate per-
sons; or at least one-half of whose possible
offspring would receive from said parent,
and would carry in the germ-plasm but
would not necessarily show in the person-
ality, the genes or genes-complex for one or
more inferior or degenerate physical, phy-
siological or psychological qualities, the ap-
pearance of which quality or qualities in the
personality would cause the possessor thereof
to function as a socially inadequate person,
under the normal environment of the ! tate.
(g) The term cacogenic person, as herein
used, is a purely legal expression, and shall
be applied only to persons declared, under
the legal procedure provided by this Act, to
be potential parents of socially inadequate
offspring.
(h) A custodial institution is a habitation
which, regardless of whether its authority
or support be public or private, provides
(1) food and lodging, and (2) restraint, treat-
ment, training, care or residence for one or
more socially inadequate inmates; provided
that the term custodial institution shall not
apply to a private household in which the
socially inadequate member or members are
close blood-kin or marriage relations to, or
legally adopted by, an immediate member of
the care-taking family.
(i) An inmate is a socially inadequate
person who is a prisoner, patient, pupil, or
member of, or who is otherwise held, treated,
trained, cared for, or resident within a custo-
dial institution, regardless of whether the
relation of such person to such institution be
voluntary or involuntary, or that of pay or
charity.
(j) Eugenical Sterilization is a surgical
operation upon or the medical treatment of
the reproductive organs of the human male
or female, in consequence of which the power
to procreate offspring is surely and per-
manently nullified; provided, that as used in
this Act the term eugenical steriUzation shall
impl}' skillful, safe and humane medical and
surgical treatment of the least radical nature
necessary to achieve permanent sexual steril-
ity and the highest possible therapeutic bene-
fits depending upon the exigencies of each
particular case.
Section 3. Office of State Eugenicist.
There is hereby established for the State of
the office of State Eugenicist,
the function of which shall be to protect the
state against the procreation of persons
socially inadequate from degenerate or defect-
ive physical, physiological or psychological
inheritance.
Section 4. Qualifications of State Eugen-
icist. The State Eugenicist shall be a trained
student of human heredity, and shall be
skilled in the modern practice of securing
and analyzing human pedigrees; and he shall
be required to devote his entire time and
attention to the duties of his office as herein
contemplated.
Se-tion 5. Term of Office, Appointment,
and Responsibility. ' The State Eugenicist
.shall be appointed by the Governor, with
the consent of the Senate, shall be responsi-
ble directly to the Governor, and shall hold
office until removed by death, resignation,
or until his successor shall have been duly
appointed.
Section 6. Seal. The Governor of the
State shall cause a seal to be fashioned and
made for the Office of the State Eugenicist,
which seal shall be duly entrusted to the
State Eugenicist and shall constitute the
evidence of authority under this Act.
448
Model Eugenical Sterilization Law
Section 7. Duties of State Eugenicist. It
shall be the duty of the State Eugenicist:
(a) To conduct field-surveys seeking first-
hand data concerning the hereditary con-
stitution of all persons in the State who are
socially inadequate personally or who, al-
though normal personally, carry degenerate
or defective hereditary qualities of a socially
inadequating nature, and to cooperate with,
to hear the complaints of, and to seek in-
formation from individuals and public and
private social-welfare, charitable and scien-
tific organizations possessing special ac-
quaintance with and knowledge of such per-
sons, to the end that the State shall possess
equally accurate data in reference to the per-
sonal and family histories of all persons
existing in the State, who are potential
parents of socially inadequate offspring,
regardless of whether such potential parents
be members of the population at large or
inmates of custodial institutions, regardless
also of the personality, sex, age, marital con-
dition, race or possessions of such persons.
(b) To examine further into the natural
physical, physiological and psychological
traits, the environment, the personal his-
tories, and the family-pedigrees of all per-
sons existing in the State, whether in the
population at large or as inmates of custodial
institutions, who reasonably appear to be
potential parents of socially inadequate off-
spring, with the view to determining more
definitely whether in each particular case the
individual is a cacogenic person within the
meaning of this Act.
(c) To maintain a roster of all public and
private custodial institutions in the state,
and to require from the responsible head of
each such institution, a record by full names
and addresses, social and medical diagnosis
and other pertinent data in reference to all
accessions and losses of inmates as such
occur from time to time; the said State
Eugenicist may require a copy of any record
which the particular institution may possess
in reference to the case, family or institu-
tional histories of any-inmate which the State
Eugenicist may name.
(d) To follow up, so far as possible, the
case-histories of persons eugenically steril-
ized under this Act, with special reference to
their social, economic, marital and health
records, and to investigate the specific effects
of eugenical sterilization.
(e) To preserve as property of the State
complete records of all investigations and
transactions of the office of State Eugeni-
cist, and annually to render to the Governor
in writing a true and complete report thereof.
(f) To perform such other duties as are
enumerated elsewhere in this Act.
Section 8. Cooperation by Custodial In-
stitutions. • For the purpose of securing the
facts essential to the determination required
by this Act, the responsible head of any
public or private custodial institution within
the State shall, on demand, render promptly
to the State Eugenicist all reports herein
contemplated, and shall extend to said Of-
ficer and his duly appointed agents ready
access to all records and inmates of the
particular institution.
Sectiwi 9. Power to Administer Oaths
and to Make Arrests., The State Eugenicist
and his assistants appointed in writing by
him for the purpose, shall have power to
administer oaths, to subpoena and to examine
witnesses under oath, and to make arrests.
Section 10. Opinion of State Eugenicist
If, after an investigation contemplated by
this Act, the State Eugenicist is of the
opinion that a particular subject of such in-
vestigation, which such subject is hereinafter
called the propositus, is a potential parent
of socially inadequate offspring, it shall be
the duty of said State Eugenicist to present
such opinion in writing, to a court of record
in the County wherein the particular propo-
situs resides, sojourns, is held or is ap-
prehended; provided that such opinion shall
be accompanied by the historical and biolog-
ical evidence upon which such opinion is
based, and by a petition to said court praying
for the legal determination of the question
of fact, whether the particular propositus is.
as held in the opinion, a potential parent of
socially inadequate offspring; provided that
in case of apparent over-sight or dereliction
by the State Eugenicist. any citizen of the
state over twenty-one years of age, of sound
mind and respected character, may institute
proceedings for the legal determination of ■
the question in fact, whether a particular
named person is, as such complaining citizen
may allege, a potential parent of socially
inadequate offspring, by presenting to the
court of record in the county in which the
particular propositus lives or sojourns, a
statement duly sworn to relating the evidence
upon which the particular allegation is
based, and praying for a legal determination
of the above-stated question of fact, where-
upon within thirty days of the filing of such
petition, such court shall consider the ade-
quacy of such evidence and, in its discretion,
Model Eugenical Sterilization Law
449
shall dismiss the case or shall command the
State Eugenicist to make the eugenical in-
vestigation provided for by this Act in refer-
ence to the particular propositus, and to
return his findings back to the court issuing
such command, which findings shall be
returned within ninety days of the issuing of
such command and shall contain an opinion
by the State Eugenicist as to whether the
particular propositus is in fact a potential
parent of socially inadequate offspring; pro-
vided that if such report presents the opinion
that the particular propositus is a potential
parent of socially inadequate offspring, the
legal and eugenical processes in the case
shall proceed as in other cases as provided by
this Act; provided that if such report pre-
sents the opinion that the particular propo-
situs is not a potential parent of socially
inadequate oflfspring, the court may, in its
discretion, dismiss the case or may order the
legal and eugenical processes to proceed
as in other cases provided by this Act.
Section 11. Appointment of Date for
Hearing. Within ten days after the presen-
tation of the written opinion by the State
Eugenicist holding a particular propositus to
be a potential parent of socially inadequate
ofFspring, or the presentation of a negative
opinion by the State Eugenicist contrarily
to which opinion the court determines to pro-
ceed, it shall be the duty of the court to
which such opinion is presented to appoint
a time for hearing the case, which appointed
time shall be within thirty days of the ap-
pointing day if the court receiving the opinion
is in continuous session, and not later than
the next regular session, if said court is held
periodically.
Section 12. Notification of Parties Con-
_ cemed. It shall be the further duty of said
court to notify the propositus or the legal
guardian, custodian, or next friend of said
propositus, the Attorney-General of the
State, and the State Eugenicist, concerning
the time, place and nature of the con-
templated hearing; to summon the propositus
to such hearing, or if said propositus be
under legal guardianship, in custody, or if,
in the opinion of said court, said propositus
be incapable of understanding the nature
of a summons, to command the legal guardi-
an, or custodian of said propositus, or an
executive officer of said court, to present
the person of said propositus before said
court at the appointed time and place; to sub-
poena witnesses; if need be, to appoint legal
counsel at the expense of the State to rep-
resent the propositus; and to institute such
other processes as may be necesary accord-
ing to the statutes of the state and customs
of the particular court, in order to insure
a prompt, just and legal decision in the
matter.
Section 13. The State's Legal Counsel.
In all legal actions growing out of this Act,
it shall be the duty of the Attorney-General
of the State, assisted by the prosecuting
attorney of the county in which the particu-
lar court is seated, to represent the State.
Section 14. Determination by Jury. On
demand of either party to a hearing as herein
contemplated, the question of fact shall be
decided by a majority vote of a jury of six,
summoned and conducted in accordance with
the laws of the State governing trials by jury,
but in case no such demand be made, the
judge presiding over the court shall decide
the case.
Section 15. Judgment. If, after the case
has been duly heard and tried, it is the
opinion of the court or the jury, as the case
may be, that the particular propositus is a
potential parent of socially inadequate oflf-
spring within the meaning of this Act, it
shall be the duty of said court to declare the
particular propositus to be a cacogenic per-
son, and to command the State Eugenicist
to arrest, if need be, such particular cacogenic
person, and to cause such person to be
eugenically sterilized in a skillful, safe and
humane manner, and with due regard to the
possible therapeutical benefits of such treat-
ment of operation; securing, if possible, the
consent and cooperation of said cacogenic
person, and, if such there be, of the legal
guardian, custodian or next friend of said
cacogenic person; and such court shall fur-
ther command that the particular cacogenic
person shall not be released from the custody
of the State Eugenicist until said order has
been duly executed, but that the said particu-
lar cacogenic person be not held in the
custody of the State Eugenicist longer than
is necessary for the consummation of the
eugenical sterilization and convalescence
therefrom; and said court shall further com-
mand the State Eugenicist to report back,
immediately upon the release of the person
sterilized, to the court issuing the said com-
mand, a sworn statement as to the identity
of the person eugenically sterilized and the
place, date, nature and outcome of the
particular operation or treatment; provided
that in case the said cacogenic person be an
inmate of a custodial institution, the court
450
Model Eugenicai, Sterilization Law
shall issue a supplementary order command-
ing the responsible head of such particular
custodial institution to provide access for
the State Eugenicist and the physician and
surgeon appointed by said State Eugenicist,
to the person of the particular cacogenic
person in the best-equipped hospital quar-
ters which such custodial institution affords
for the consummation of the particular
eugenical sterilizing operation or treatment,
and to aid and co-operate in such consum-
mation; provided that in case the court is
convinced that the conduct or security of
said cacogenic person is such that said per-
son will not become a parent, the court may
in its discretion suspend the order for eugeni-
cal sterilization during the period of such
conduct and security.
Section 16. Appeals. In litigation grow-
ing out of this Act, appeals from the deci-
sion of the court of first, instance shall lie
as in civil trials de novo at law, as provided
by the statutes of the State.
Section 17. Type of Eugenical Steriliza-
tion. The particular type of surgical opera-
tion or medical treatment for effecting steril-
ization in each particular case legally or-
dered in consequence of this Act shall be
determined upon by the State Eugenicist,
after due consultation with competent med-
ical and surgical advisors.
Section 18. Manner of Consummation.
All cases of eugenical sterilization executed
in consequence of this Act shall be consum-
mated under the direct supervision and re-
sponsibility of the State Eugenicist, in a
skillful, safe and humane manner, with due
regard to the possible therapeutic benefits
to be derived therefrom, and in strict accor-
dance with modern sanitary, hospital, med-
ical and surgical knowledge and practice;
provided that the contracts for the hospital,
medical and surgical services involved in
such consummation shall be entered into for
the State by the State Eugenicist, who shall
determine the necessary and reasonatje fees
incident thereto, which fees shall be paid
by the State from funds previously approp-
riated for said purpose; provided that in
case the person ordered sterilized be an in-
mate of a custodial institution, and if in
the opinion of the State Eugenicist, the hos-
pital facilities of the particular institution
are inadequate, or if time ample for eugen-
ical sterilization and convalescence does not
permit the particular operation or treatment
to be consummated before the time previ-
ously set for the discharge, release (k parole
of the particular propositus, the order . for
eugenical sterilization shall not be consum-
mated in the custodial institution, but that
the responsible head of said particular cus-
todial institution shall at the time previously
set for the discharge, release or parole of
the particular propositus, so discharge, re-
lease or parole said person into the custody
of the State Eugenicist, who shall then pro-
ceed to execute the order for the eugenical
sterilization as in cases originating in the
population at large.
Section 19. Liability. Neither the State
Eugenicist, nor any other person legally par-
ticipating in the execution of the provisions
of this Act, shall be liable either civilly or
criminally on account of said participation.
Section 20. Illegal Destruction of Repro-
ductive Functions. Nothing in this Act shall
be construed so as to prevent tlie medical
or surgical treatment for sound therapeutic
reasons of any person in this State, by a
physician or surgeon licensed by this State,
which treatment may incidentally involve
the nullification or destruction of the re-
productive functions; provided that any per-
son in this State, except as duly ordered by
the courts of law as contemplated in this
Act, who wilfully, and without the afore-
mentioned therapeutical necessity, nullifies
or destroys or assists in nullifying or de-
stroying, the reproductive functions of any
person, shall be guilty of a felony, and shall
be punished by not less than ^months'
imprisonment or a fine of dollars, or
bioth, or by not more than months
imprisonment or a fine of dollars, or
both.
Section 21. Punishment of Responsible
Head of Institution for Dereliction. The
responsible head of any public or private
custodial institution in the State who shall
discharge, release or parole from his or her
custody or care any inmate who has been
duly ordered by a court of this State to be
eugenically sterilized, before due consumma-
tion of such order as herein contemplated,
unless, as herein provided, such particular
inmate be discharged, released or paroled
into the custody of the State Eugenicist,
shall be guilty of a misdemeanor, and shall
be punished by not less than ^months'
imprisonment or dollars fine, or both,
or by not more than months' imprison-
ment or dollars fine, or both.
MoDEr, EuGENiCAi< Steriuzation Law
451
Section 22. Supremacy of this Act. All
statutes or portions of statutes of this State
contrary to this Act are hereby repealed.
Section 23. When Effective. This Act
shall take effect immediately.
C. THE FEDERAL GOVERNMENT
AND EUGENICAL STERILIZATION.
a. Principles Suggested for a Federal
Statute.
Persons Subject 1. Immigrants who are
personally eligible to admission but who
by the standards recommended in the model
state law are potential parents of socially
inadequate offspring. 3. All persons below
the standards of parenthood set in the model
state law who are beyond the jurisdiction
of state laws, including the inhabitants of
the District of Columbia, unorganized and
outlying territories, Indian reservations, in-
mates of federal institutions, and soldiers
and sailors.
Executive Agencies Provided, Federal
Eugenicist attached to Public Health Ser-
vice or the Children's Bureau, aided by an
ample corps of assistants.
Basis of Selection: Procedure. Same as
for model state law, naming in place of
state courts of record. Federal Courts of
appropriate jurisdiction.
Type of Operation Authorized. Same as
for model state law.
United States' Motive. Purely eugenic.
Appropiations Available for Enforcing the
Act. Axuple appropriations for the main-
tenance of the activities of the Federal Eu-
genicist as a permanent and effective insti-
tution.
b. Comment.
Up to the present time, the Federal Gov-
ernment has not enacted any legislation
bearing either directly or indirectly upon
eugenical sterilization. The matter of seg-
regating, sterilizing, or otherwise rendering
non-reproductive the degenerate human
strains in America is, in accordance with the
spirit of our institutions, fundamentally a
matter for each state to decide for itself.
There is, however, a specialized field in
which the Federal Government must co-
operate with the several states, if the human
breeding stock in our population is to be
purged of its defective parenthood.
The relation between the inheritable
qualities of our immigrants and the destiny
of the American nation is very close. Grant-
ing' that the fecundity of native and immi-
grant stock will run evenly, then it is clear
that from generation to generation the nat-
ural qualities of our present human parent-
hood will more and more assume the char-
acter of the natural qualities of immigrant
parents. Thus, if the American nation de-
sires to upbuild or even to maintain its
standard of natural qualities, it must forbid
the addition through immigration to our
human breeding stock of persons of a lower
natural hereditary constitution than that
which constitutes the desired standard.
If our standard of physical, mental and
moral qualities for parenthood strike more
heavily against one race than another, then
we should be willing to enforce laws which
take on the appearance of racial discrimina-
tion but which indeed would not be such,
because in every race, even the very lowest,
there are some individuals who through
natural merit could conform to our standards
of admission.
The immigration poUcy of the eugenicist,
who has at heart the preservation, upbuild-
ing and specialization of our better family
stocks, is to base the criterion for admission
of would-be immigrants primarily upon the
possession of sterling natural qualities, re-
gardless of race, language, or present social
or economic condition.
It is suggested that a Federal Eugenicist,
attached to the Public Health Service, or to
the Children's Bureau, aided by an ample
corps of assistants, would constitute an
effective administrative agency for steriliza-
tion under federal authority.' Some of the
assistants of the office of Federal Eugenicist
should be delegated to cooperate with the
Immigration Service of the Department of
Labor, and the Bureaus of Criminal Identi-
fication, and of Prisons, of the Department
of Justice, and possibly with the Bureau of
Education of the Department of the Interior.
If the projected plan for examining the ad-
missibility of immigrants in their native
homes before their purchase of transporta-
tion, or even upon the steamships before
landing, were adopted, it would be possible
to pass satisfactorily upon the eugenical
qualifications of the particular immigrant.
452
Model Eugenical Sterilization L,aw
This would be effected by attaching eugen-
icists to the medical and social staff to
which would be delegated the task of deter-
mining the eugenical qualifications of each
candidate for admission.
The Federal Government has exclusive
jurisdiction over immigrants, and it controls
interstate and foreign quarantine. It has
also exclusive jurisdiction, either direct or
final, over the socially inadequate, both with-
in and not in custodial institutions, in the
District of Columbia, the Indian reserva-
tio'ns, and the territories which have not yet
been admitted to statehood. It operates and
controls the twenty-four federal custodial
institutions for various types of the socially
inadequate. Thus a Federal law would be
needed in order eflfectually to cooperate with
the eugenical efforts of the states, should
the latter generally determine upon sterili-
zation as a means for cutting down the-
birth rate among degenerates. The office
of Federal Eugenicist attached to the Public
Health Service or the Children's Bureau
would constitute an appropriate executive
agent of a federal sterilization statute.
CHAPTER XVI.
EXPLANATORY COMMENTS ON THE MODEL STERILIZATION
LAW.
Introduction 454
Preface 454
Section 1. Short title • 454
Section 2. Definitions.
a. Socially inadequate person .' 455
b. Socially inadequate classes 455
c. Heredity 455
d. Potential parent 455
e. To procreate 455
f. Potential parent of socially inadequate offspring 455
g. A cacogenic person 456
h. Custodial institution 456
i. Inmate 456
j. Eugenical sterilization 456
Section 3. Oiffice of State Eugcnicist 456
Section 4. Qualifications of State Eugenicist 457
Section 5. Term of office, appointment and responsibility 457
Section 6. Seal 457
Section 7. Duties of State Eugenicist 457
Section 8. Cooperation by custodial institutions 458
Section 9. Power to administer oaths and to make arrests _. . 458
Section 10. Opinion of State Eugenicist .- 458
Section 11. Appointment of date for hearing 458
Section 12. Notification of parties concerned 458
Section 13. The State's legal counsel 459
Section 14. Determination by jury 459
Section 15. Judgment 459
Section 16. Appeals ' 459
Section 17. Type of eugenical sterilization 459
Section 18. Manner of consummation 459
Section 19. Liability 460
Section 30. Illegal destruction of reproductive functions 460
Section 21. Punishment of responsible head of institution for dereliction 460
Section 22. Supremacy of this act 460
Section 23. When efifective 460
Appendix: Appropriations 460
454
Comments on the Model Steriuzation Law
INTRODUCTION.
The lawmaker must consider eugenical
sterilization in the light of the whole com-
plex of its relationships; its legal, historical,
social, economic, religious, surgical, and eu-
genical bearings. The evidence brought to-
gether in this book is intended to serve the
legislator in his efiforts to weigh the matter
in its entirety. On the one hand eugenical
sterilization purports to prevent the repro-
duction by certain definitely and legally de-
scribed and located cacogenic persons. It
claims that by so doing the race will be
purged of some of its degenerate and defec-
tive stock. It is effective in so far as it is
an insurance against reproduction by the
individuals operated upon. It may be ac-
complished with little or no danger to life,
depending upon the legislative provisions for
executing the operation "in a skillful, safe
and humane manner." In some cases the
operation itself may be of some therapeutic
benefit, but in most cases it is neither a
mental or physiological benefit nor ill.
While compulsory, still in most cases it is
possible to secure the cooperation of the pa-
tient or the patient's family. As a matter
of fact in most, but not all, cases of legalized
operations thus far consummated, such co-
operation was actually secured. The cost
to the state in maintaining in custodial in-
stitutions its anti-social citizens would prob-
ably be reduced considerably by eugenical
sterilization, although the effects of such re-
duction would not be apparent until future
decades. The science of eugenics has made
sufficient progress to enable it, by pedigree-
studies, to demonstrate the cacogenic inher-
itance of certain of the more patent types
of mental, physical and temperamental de-
generacy.
On the other hand, eugenical sterilization
takes away from the individual the natural
ability, and by some held "the natural
right," to reproduce. If a mistake be made
in selecting an individual for sexual sterili-
zation, the error cannot be rectified. It sub-
jects the individual to compulsory surgical
operation with its accompanying surgical
shock. If the operation is not skillfully
selected and executed, it may cause a mental
or physical injury. Eugenics is a new
science and has not yet a great body of
history and evidence to support it, which,
for example, medicine claims for itself, but
effective, if not ideal, executive machinery
for enforcing a justly enacted law has been
put into actual operation, so that there are
some authentic data upon which to base
criticisms in reference to effective adminis-
tration.
Thus, the lawmaker must balance evi-
dence in favor of and against the policy of
eugenical sterilization. The certain great
racial and social benefit, the possible benefit
to the individual, the ultimate great saving
in money by the state must be weighed
against the taking away of a natural power,
a possible miscarriage of justice, a possible
mistaken diagnosis, a possible surgical shock,
and a possible physiological ill to the per-
son alleged to be a potential parent of de-
fective stock.
This model law has been drafted in ac-
cordance with the teachings of the practical
working out of the existing statutes, the
decisions of the courts in cases wherein the
statutes have been tested, and the biological
and social requirements of the case. Be-
cause of the varying eugenical needs, the
different legislative customs, and the differ-
ent policies in conducting the business of
the state, this draft, while sound from the
standpoint of constitutionality in the aver-
age state, and meeting the average biolog-
ical and social requirements of the situation,
should be submitted to competent eugeni-
cists, psychiatrists, institutional executives,
and lawyers, in the state in which it is
proposed to enact a statute following the
general principle here outlined. The active
cooperation of all these specialists is needed
in order to insure conformity to the special
needs and policies of the particular state.
It would, therefore, constitute a serious mis-
take to omit the advice of any one of them.
Preface. The preface contains a short
statement concerning the purpose of the
act. It will be noted that the actuating
spirit of the model statute is eugenical. The
therapeutic benefit is merely incidental, and
there is absolutely no sign or suggestion
of punishment. In states in which it is
customary to introduce a statute in a dif-
ferent manner, the following introduction
is suggested: "Whereas, heredity deter-
mines the natural endowments of a people,
and therefore in its degenerate phases plays
a most important part in the causation of
feeble-mindedness, insanity, criminalistic
tendencies, diminished vigor, susceptibility
to disease, physical deformity and other in-
dividual and racial handicaps, be it enacted
Section 1. Short Title. In some states it
is customary to name a statute. In naming
Comments on the Model Steriwzation Law
455
this act the "Eugenical Sterilization Law",
it receives a designation which, together
with its chapter number in the session laws
of the state which enacts it, will serve the
useful purpose of both legal and lay refer-
ence and description.
Section 2. Definitions. In any statute
which involves the application of technical
principles, technical terms should be stand-
ardized by legislative enactment so far at
least as their use in the particular statute is
concerned. The principal purpose of legally
defining the several terms used in eugenical
pedigree-studies is to present to the execu-
tive agents of the law a uniform standard
for action. Also such standardized defini-
tions will prevent the confusion of terms and
the use of long circumlocutions in subse-
quent sections of the statute.
(a) Socially inadequate person. The whole
purpose of eugenical sterilization is to pre-
vent the reproduction of persons who, be-
cause of their hereditary make-up, would be
destined to become social menaces or wards
of the state. The term social inadequacy
covers this whole group of individuals!
(b) Socially inadequate classes. In de-
nouncing the New Jersey statute as "class
legislation", the court could see no logical
boundaries to the whole group of undesir-
able parenthood, but had the court made a
careful investigation of the classification of
social handicap and degeneracy, he would
have found substantially the ten classes
given under section "b", which ten classes
include the whole range of social inade-
quacy. It is therefore proper by statutory
definition to draw a definite line of demar-
cation between the socially efifective and the
socially ineffective members of the commun-
ity.
(c) Her^ity. The great confusion in the
notions as to what heredity is and is not
necessitates a biologically sound administra-
tively practical definition of this word to
guide the executive agents of the statute.
(d) Potential parent. A child who has
not yet reached the age of puberty and con-
sequently is not able to procreate offspring,
is, if his hereditary make-up be bad, a men-
ace on account of his probable future sexual
development. Women who have passed the
climacteric, and very aged men, are, on ac-
count of age limits, not potential parents.
Similarly men and women still in the re-
productive ages, but who have lost their
reproductive powers through surgical opera-
tions, accident or disease, or who from de-
fective inheritance or development are ster-
ile, are of course not potential parents, and
no eugenical purpose could be served by
further operating on their reproductive or-
gans.
(e) To procreate is here used as a general
term. It saves the use of the expression
"to beget or to conceive, as the case may
be", throughout the statute. The justifica-
tion for applying the term "to procreate" to
both sexes with equal force was given by
the editors of Webster's Dictionary, in a
letter to the author (March 8, 1918), as fol-
lows :
Their hope to procreate children. Fenton
(1579).
A pair of animals, producing two
hundred offspring, of which only
two on an average survive to procreate their
kind. Darwin (1859).
If that be female which procreates in it-
self; all plants female. Sir Thomas
Browne, (1646).
Couples marry and procreate on the idea,
not the reality of a maintenance; they in-
crease beyond the demand of towns and
manufactures. A. Young (1793).
One of the principal ends of marriage is
the procreation of children. Bouvier Law
Diet. (1897).
(f) Potential parent of socially inadeqtiate
offspring. An accurate definition of a poten-
tial parent of socially inadequate offspring
is very difficult to establish. Persons are
socially handicapped or inadequate on ac-
count of physical, mental or moral qualities.
Moreover many persons who themselves seem
effective enough are from such mongrel
stock that a large proportion of their off-
spring are degenerates. If the determina-
tion of undesirable parenthood is left to the
judgments of boards or commissions with-
out establishing a biologically sound criter-
ion for making such judgment, which criter-
ion many existing statutes have omitted,
there is little likelihood that such boards or
commissions will go into the matter in a
scientifically thorough manner. Thus it
seems eminently proper that the statute
should, in accordance with the best biologi-
cal teaching, establish a criterion for the
determination of undesirable parenthood.
Section "f" seeks to provide such a stand-
ard.
This standard may be raised or lowered
in accordance with the radicalness with
456
Comments on the Model Sterilization Law
which the state desires to purge the heredi-
tary stock of natural degeneracy. Tlie spe-
cific definitions given in the law must depend
also upon the existing knowledge of human
heredity and the specific rules which the
science of eugenics is ahle to demonstrate
as locating definitely specific types of hered-
itary deficiency or degeneracy in particular
individuals. In the case of most degenerate
hereditary constitutions there are doubtless
many of the so-called unit traits or genes
involved. The working out of their rules of
inheritance involves much research and is
possible only by the use of many compli-
cated formulas. But the state, regardless
of such complex situations, must reserve the
right to establish a definite line differentiat-
ing legally degenerate parenthood from
parenthood which is not under the legal ban
on account of defective inheritance.
Thus, if as a result of the expert testi-
mony of the eugenicist, and the knowledge
gained from the investigation of the hered-
itary qualities of a particular individual, the
evidence demonstrates that a particular in-
dividual in his or her reproductive capacities
falls without the boundary for socially de-
sirable parenthood set by this statute, the
particular individual may, by the courts, well
be declared a potential parent of undesirable
offspring, that is, a cacogenic person.
(g) A cacogreiuc person. In order to draw
the line in a clean-cut manner, the term
caCogenic person is reserved for application
to an individual who, by due process of law
in accordance with the standards of hered-
itary adequacy laid down by this particular
draft, and the expert pedigree-evidence
given under it, is demonstrated and declared
to be a potential parent of socially inade-
quate offspring. Thus in the single definite
legal phrase, a cacogenic person, we may
describe the person definitely proven anti-
eugenical.
(h) Custodial institution. It is becoming
more customary for the states to define and
to license private custodial institutions.
Since the sterilization law is to apply both
to inmates of custodial institutions and to
persons in the population at large, a legal
definition of custodial institutions is desir-
able. The standard of numbers may vary
with the policy of the state, but if a close
supervision is to be maintained over the care
and treatment of the state's socially inade-
quate classes, or even if accurate censuses
of them are to be secured from time to time.
the number of inmates which a place must
have in order to become a custodial institu-
tion under the law may well be the mini-
mum, that is, one or more.
(i) Inmate. The term "inmate" in the
sense here used includes prisoners, patients,
pupils and members of institutions tor care,
treatment and punishment. It is found nec-
essary to provide a legal meaning for the
term "inmate", because many institutions,
especially those for the dependent classes,
and indeed for some of the institutions for
delinquent, and wayward girls, have objected
to the term "inmate". But if given a legal
definition, it need carry no connotation of
shame or blame.
(j) Eugenical Sterilization. Sterilization
is sometimes made synonymous with vasec-
tomy, while the term asexualization or emas-
culation is often made synonymous with
castration. Thus there is a necessity for a
general term and definition which will cover
the whole range of surgical operations, the
primary purpose of which is to destroy the
reproductive functions. Sterilization may
be effected by simply destroying or obstruct-
ing a section of each of the vasa deferentia
in the male or of the Fallopian tubes in
the female, or by the more radical opera-
tions of removing the testes of the male or
the ovaries of the female. In any case the
operation may fittingly and legally be called
sterilization, and each of the score or more
of specific operations be called by their
common or technical names.
In some states the existing laws call for
operations which will most effectively pre-
vent procreation. This is, of course, too
indefinite: decapitation or cutting out the
heart would prevent procreation, but also
would kill the patient. Thus it s^ms wise
to provide that the sexually sterilizing oper-
ation be performed upon the reproductive
mechanism, and that it be of the least radi-
cal nature that will insure permanent sexual
sterility.
Section 3. Office of State Eugenicist. The
argument for entrusting the enforcement of
the sterilization statute to a trained person
rather than to a commission composed of
ex officio members is given under the dis-
cussion of executive agencies. In short, we
may say that the task is an arduous one
which calls for special training and there-
fore cannot be effected by men whose prin-
cipal interests lie elsewhere and whose train-
Comments On ti-ii; Model Sterilization Law
457
ing may not have been directed in the fields
in which the State Eugenicist must be
skilled.
Section 4. Qualifications of State Eugen-
idst By writing short qualifications for the
State Eugenicist into the sterilization law,
the state will be assured of an executive
agent who will at least be competent to per-
form the most elementary functions of his
office. It reduces to the minimum the liabil-
ity to abuse through political appointment.
The proven benefit to state service accruing
from establishing legal qualifications for
public office has established the desirability
of such practice.
Section 5. Term of Office, Appointment,
and Responsibility. The State Eugenicist
should be assured a tenure long enough to
enable him to establish and work out a def-
inite policy and plan in enforcing the law.
His task is too intimate to permit of fre-
quent changes. Appointment by the Gov-
ernor from a definitely qualified group ought
to insure a higher class official than would
be otherwise obtained, and making the State
Eugenicist responsible to the Governor en-
tails desirable responsibilities upon each. In
many states it is becoming customary to
reduce the number of independent officials
and commissions, and to organize their
activities into state executive departments
comparable in some measure to the execu-
tive departments of the federal government.
In such cases the direct responsibility of
the State Eugenicist might well be made,
not to the Governor, but to the head of
the Department of Institutional Administra-
tion, or to the State Administrator of Char-
ities and Corrections, or to whatever depart-
ment is entrusted with the problem of social
inadequacy.
Section 6. Seal. In order to give author-
ity to the business transactions of the office
of State Eugenicist, a seal is desirable. It
is especially necessary in work which in-
volves the preparation of documents with
which special interests might care to tamper.
The seal also gives the official stamp to the
many orders which must be issued by the
State Eugenicist, On a commission issued
to a field worker, the seal gives official
standing in communities in which the work-
er, is a stranger.
Section 7. Duties of State Eugenicist.
(a) The first duty of the State Eugenicist
is to comb the whole population of the state
for cacogenic parents. This can of course
be done only by field-studies, and by the
cooperation of social welfare agencies
throughout the state.
(b) Whenever a degenerate line is located,
the State Eugenicist must then use persons
trained in modern pedigree-studies to make
further analysis of the facts. This is a logi-
cal and obvious necessity.
(c) The sterilization law applies equally
to individuals in institutions and to those 'in
the population at large. The number of the
state's socially inadequate parents at large
is much greater than the number of such
persons who are inhabitants of institutions.
Still the incidence of hereditary degeneracy
among the inmates of institutions is so high
that it justifies the State Eugenicist in main-
taining a roster of custodial institutions, and
further makes it necessary for the state to
authorize this officer to require certain re-
port? from the several custodial institutions.
Until the state maintains an accurate census
record of its socially inadequate in institu-
tions and in the population at large, it can-
not legislate intelligently in coping with the
situation, nor can its executive agents carry
on their work effectively.
(d) The business of the State Eugenicist
is so important that complete reports of all
transactions should be kept, and a report
made annually to the Governor or the De-
partment of Institutional Administration, if
such latter exists. If provisions for such
reports are not made in a statute, an incom-
petent appointee will be very apt to neglect
the keeping of records. Especially impor-
tant are complete records in eugenical in-
vestigations, because extensive fi^ld-studies
hav^—proven that the kinship between the
socially inadequate strains, even in remote
parts of the same state, is remarkably close.
The exchange of pedigree-studies by differ-
ent institutions has further demonstrated the
necessity of a central archive of pedigree-
studies. Such records will be valuable as
fong as the state must combat the problem
of hereditary degeneracy.
(e) It may truly be said that no legislative,
administrative or judicial work of a state is
of the greatest permanent value unless rec-
ords are made of such transactions, and
these records are accessible to the public
and properly cared for, so that their per-
manent preservation and care are assured.
458
Comments on the Modei, Steriwzation Law
(f) The other duties referred to in this
Act are those in connection with court pro-
cedure and the actual execution of sterilizing
operations.
Section 8. Cooperation by Custodial In-
stitutions. If the state by statute did not
command a ready cooperation by custodial
institutions in enforcing the sterilization
statute, doubtless many of them would de-
mur and would resent the work and inves-
tigation of the State Eugenicist. If, how-
ever, operation were demanded by law, the
exchange of services between the State Eu-
genicist, especially in the use of his archives,
and the custodial institutions, would be so
great that the latter would soon be anxious
to cooperate in the work of finding potential
parents of degenerates. Under the law as
written, there need be no fear on the part of
advocates of extensive segregation that ster-
ilization will take its place; there will always
be work enough for both of these social
agencies. The Model Law provides for the
sterilization of inmates of institutions only
when such inmates are to be released into
the population at large while still potential
parents of socially inadequate offspring.
It is not, however, to be concluded from
this section that the investigations and work
of the State Eugenicist are to be confined to
state custodial institutions. Indeed, the
principal part of his work will be in various
parts of the state, dealing with local officials
and the families of social inadequates. Their
cooperation depends largely upon the tact
of the representative of the State Eugenicist,
and but little could be gained by demanding
such cooperation. The authority of the
State Eugenicist to administer oaths and
make arrests is the power behind such dip-
lomatic conduct which insures that the work
of the field investigator will be amply backed
by the law.
Section 9. Power to Administer Oaths
and to Make Arrests. Under this draft the
State Eugenicist and his assistants would
have an official standing, and like other offi-
cers must have ample legal authority to 'se-
cure the facts which the law demands that
they have in hand. At least two of the
existing sterilization statutes permit their
commissions to subpoena witnesses and ad-
minister oaths. The power to make arrests
is that granted to all police oflicers and in
many states is inherent in citizenship gen-
erally. But the necessity to secure evidence
is so important, that the liability of losing
evidence through inability to hold an indi-
vidual when found would doubtless in many
cases greatly handicap the investigating
powers of the office of State Eugenicist.
The arrest, however, in cases authorized by
Section 9, would consist only in holding an
individual until the legal papers could be
served. Furthermore, these assistants from
the State Eugenicist's office who are thus to
be deputy police and who would be well
acquainted with the individuals in the case
might well act in the capacity of police offi-
cers in serving the papers issued by the
court.
Section 10. Opinion of State Eugenicist.
The investigations of the State Eugenicist
must have for their purpose the location of
potential parents of socially inadequate off-
spring. But since the law must apply to
all socially inadequate parents in the state,
it is quite proper that legislative provision
be made whereby any individual may in case
of dereliction by the State Eugenicist in-
stitute court proceedings for the determina-
tion of degenerate parenthood on the part
of a certain named individual.
In some statutes the determination by an
executive officer of the existence of the fact
of undesirable parenthood is sufficient to
permit the same officer to order the sterili-
zation of the particular person investigated.
But the view of this model statute is that
eugenical sterilization is so fraught with
possibilities for error and also possibilities
for abuse of power that due process of law
should consist in court procedure so far as
the final determination and order are con-
cerned. Thus the State Eugenicist is com-
manded to present his evidence to a court
of competent jurisdiction.
Section 11. Appointment of Date for
Hearing. If complaint is duly filed, the
court must then, according to the law, set a
date for hearing the case. It is essential in
such a statute, if effective and expeditious
execution is desired, that the date set be not
too remotely distant. This section provides
for a fair hearing so far as the propositus is
concerned, and for presentation of the facts
of degenerate inheritance in the case in a
manner adequate to a prompt determination
of the question in hand.
Section 12 Notification of Parties Con-
cerned. This section provides for the notifi-
cation of the parties interested, so that all
the processes of a fair trial are set in motion.
Comments on the ModEi* Sterilization Law
459
Section 13. The State's Legal Counsel.
In practically all of the states the Attorney-
General is required to serve the state in the
capacity of legal counsel. This of course
includes serving the state's executive officers
in their efforts to enforce the law.
Section 14. Determination by Jury. The
question of fact in sterilization cases is of
sufficient seriousness to provide on the
demand of either party a trial by jury. How-
ever, there would seem to be no good reason
to require such a jury in every case. Doubt-
less in most sterilization cases both the at-
torneys for the propositus and for the state
would agree to abide by the decision of the
judge without a jury.
Section 15. Judgement. This section pro-
vides for the declaration by the courts that
a given individual, demonstrated by due
legal procedure to be a potential parent of
socially inadequate offspring, is a cacogenic
person, and in such a case provides also for
ordering the actual performance of eugenical
sterilization. However, until the individual
is legally demonstrated to be a potential
parent of socially inadequate offspring, he
or she cannot, under the law, be referred to
as "a cacogenic person."
The provision for sterilization in a skillful,
safe and humane manner is essential to in-
suring a due regard for the rights of the
individual sterilized. This section further
provides for due authority on the part of
the State Eugenicist to arrest, if need be,
and to hold the individual to be sterilized,
and also provides for protecting the subject's
rights by making provisions against his being
held for an undue period of time. Since
the court must issue the order for steriliza-
tion, it is altogether fitting that a report con-
cerning its execution be made back to the
court. As an additional safeguard to the
liberties and rights of the individual, in many
laws the court is given discretion to grant
certain leniencies to individuals who, by due
process of law, have been placed in a definite
legal situation. Such authority is granted
by the last clause of section 15 as a safe-
guard in cases of doubt, or in exceptional
cases for which the written law in its in-
sufficiently flexible manner has not definitely
accounted.
Section 16. Appeals. It is obvious that
decisions made by the lower courts, regard-
less of the special nature of th'eir subject,
must, in order to be consistent with the gen-
eral judicial practice of the State, be subject
to the rules governing appeals in general.
Section 17. Type of Eugenical Steriliza-
tion. Because the specific type of sterilizing
operation must in each case be decided upon,
and because the definite location of responsi-
bility is a desirable thing in the execution of
laws, charging the State Eugenicist with the
responsibility of deciding upon the particular
type of operation is consistent with sound
executive practice. It might, of course, be
possible to include the designation of the
type of operation in the order for steriliza-
tion, but this would involve too much court
procedure; it would require the court to
exercise a detail much more properly exe-
cuted as a ministerial than as a judicial func-
tion. Such detail determination directly by
the court, after the court has decided the
main issue, would involve a study very in-
tricate and extensive in each case, if justice
were done to the therapeutic possibilities of
each particular case. The selection of a
specific type of operation is a thing for
physicians and surgeons to advise, and for
the State Eugenicist to determine upon in
accordance with their advice. Such a pro-
cedure would permit also the use of possible
future improvements in surgical technique,
and the use of new operations which surgical
science may develop for effecting sexual
sterilization. Also the close cooperation be-
tween the State Eugenicist and the surgeon
in the case would permit a certain surgical
leeway which is desirable in case a surgeon,
after beginning an operation, finds a patho-
logical condition which indicates, in the
interests of therapeutics, a modification of
the operation as originally planned.
In short, the provisions of this section
make doubly sure that the least physiological
ill and the greatest therapeutic benefit shall
accrile to the particular potential parents of
defective offspring who are, by due process
of law, ordered to be made sexually sterile.
Section 18. Manner of Consummation.
This section contains further provisions for
safeguarding the rights of the individual,
and insures that the operation itself shall be
consummated in accordance with the best
knowledge and practice of the medical pro-
fession. It provides further that the State
Eugenicist shall be the state's agent in con-
tracting for such medical, surgical and hospi-
tal services as may be needed in such cases.
Under this plan there would be many cases
of eugenical sterilization within institutions
460
Comments on the Model Sterilization Law
of various types, but doubtless most of the
eugenical sterilizing operatibns, would be
upon cacogenic individuals located in the
population at large. It is necessary then to
provide two methods of procedure — one to
apply to cases within institutions, and the
other to cases in the general population.
Section 18 seeks to make the execution of
the order sure and just in each case.
There is of course no eugenical object in
sexually sterilizing an inmate who will spend
the remainder of his or her sexually fertile .
days within the custody of a modern insti-
tution. Provision for suspending the opera-
tion in such cases is apparently an act of
wisdom as well as of justice.
There is one other special case which
needs attention. It is conceivable, that an
individual prisoner's term might expire sub-
sequently to the order of the court, but be-
fore the actual operation could be performed
in the institution. By providing in such
cases for the discharge or parole of the
prisoner into the custody of the State
Eugenicist, the possibility of evading the
law in such particular cases is removed.
Section 19. Liability. Officers in execut-
ing the law are of course not personally
liable either civilly or criminally for their
official acts, if they are well within the mean-
ing of the statute. But it is probable that a
statutory protection against liability on the
part of the State Eugenicist, his field-work-
ers, and the surgeons in executing eugenical
sterilization, would stop possible cases of
contemplated revenge by means of attempted
litigation.
Section 20. Illegal Destruction of Re-
productive Functions. With the spread of
knowledge of the methods of destroying the
reproductive functions, many individuals
will be apt to apply to physicians to be, made
sexually sterile in order to avoid the re-
sponsibilities of parenthood. Indeed, some
of the existing sterilization commissions have
been appealed to by individuals desiring
sterilizing operations for such purpose. If
such persons are potential parents of de-
fectives, the State Eugenicist within the law
could accommodate them by securing a
court order for their sexual sterilization, but
unless proper court procedure be undertaken
in each case the liability of abuse of the oper-
ations of sterilization is very great. The
reproductive function is attended with such
potentiality for good or evil that tampering
with it to avoid personal responsibihty of
parenthood should be forbidden by law. As
seen in the analysis of the subject, many of
the states in their existing statutes have seen
fit to include a provision against the criminal
destruction of sexual fertility. It seems a
wise provision, and is therefore included in
the model draft.
Section 21. Punishment of Responsible
Head of Institution for Dereliction. The
punishment of derelict officials is a matter
which states generally cover by special
statutes. Still one state, Kansas, in its first
sterilization statute, inserted a section which
made it a misdemeanor for the managing
officer of any institutiqn to neglect or refuse
to execute orders for the sterilization of
inmates duly ordered in his particular insti-
tution. Jt seems to be a desirable provision,
and is included in the model statute as an
insurance of closer cooperation between the
State Eugenicist and custodial institutions.
Section 22. Supremacy of this Act. It is
customary in all legislation, especially in
statutes which treat a new subject, to pro-
vide that all portions of previously enacted
state laws which are contrary to the particu-
lar act be repealed. In the complex of laws
relating to custodial institutions and public
charities, there may be found many pro-
visions to conflict with what the state desires
to accomplish under a sterilization statute.
It is doubtful, however, whether any pro-
visions of the model draft as here given
would run counter to either a State Con-
stitution or to many legislative acts relating
to the enforcement of the law or the securing
of justice. The principal laws which would
probably be modified by this section are
those relating to the specific duties of exe-
cutive officials.
Section 23. When EfTective. This is of
course a matter of policy on the part of the
particular state. In some states the point
is covered by constitutional provision. It is
noticed in reading statutes that the date on
which they become eflfective ranges from
the date of signature by the governor to a
number of months in the future.
APPENDIX: APPROPRIATIONS.
If an eugenical sterilization law is to be
effective, it must, because it requires ex-
tensive special and expert administration, be
supported by adequate appropriations. All
of the items listed in the suggested outline
Comments on the Model Sterilization Law
461
of appropriations are necessary, and should
be duly included in their proper places in ac-
cordance with the particular state's custom
in making appropriations for maintaining
permanent state activities. Since the present
draft is that for a general law, it is probably
true that in most states the support given by
any appropriation which might accompany
the law's enactment would be limited to a
single fiscal year, and henceforth appropria-
tions for continuing the work contemplated
by the sterilization law would have to be con-
sidered under the general appropriation bills.
In states having a, budget system such
mixture of general legislation and appropria-
tions would not be permitted For these
reasons it seems desirable that the law defin-
ing the state's sterilization policy and organ-
izing the machinery for its administration
should, from the beginning, be separate from
the appropriation bills.
(See page 494 for itemized appropriations
form.)
CHAPTER XVII.
SET OF FORMS SUGGESTED FOR USE OF THE STATE EUGENICIST,
THE COURTS, PRIVATE CITIZENS, AND CUSTODIAL INSTITU-
TIONS IN ADMINISTERING THE MODEL EUGENICAL
STERILIZATION LAW.
Suggested Forms for Use oe Eugenicist, Court, Etc. 463
MODEL FORMS.
When a sterilization law becomes effectively established, the matter of forms and
records will, of course, be developed in accordance with the needs of the particular
case. However, the history of the execution of the existing laws on this subject demon-
strates the need of a complete set of model forms for use during the early period of
the law's application. The following forms are designed especially for administering
the Model Sterilization Law, but they are meant also to serve as suggestions in prepar-
ing a set of forms for use in the effective execution of any practical eugenical steriliza-
tion statute.
1. Case record by State Eugenicist.
a. Historical record 464
b. Record of investigation by state eugenicist 466
c. Report to State Eugenicist 467
2. Information or complaint by private citizen to State Eugenicist 467
3. Institutional record of individual inmate prepared for State
Eugenicist 468
4. Report of State Eugenicist. (a. opinion, b. evidence, and c. peti-
tion) 469
5. Action begun by private citizen 470
a. Individual petition to court <'. 470
b. Order of court denying private petition 471
c. Order of court to State Eugenicist to investigate a par-
ticular case 471
6. Hearing.
a. Proclamation appointing time and place for hearing 473
b. Summons of propositus.
1. Summons to propositus in case such propositus
IS not an inmate of a custodial institution and
is personally capable of understanding the nature
of a summons 472
2. Order to guardian or custodian of propositus in
case such propositus is an inmate of a custodial
institution or lives under guardianship in the
population at large 473
3. Order for arrest and presentation to court of the
person of the propositus in case such propositus
is neither an inmate of a custodial institution,
nor living under guardianship in the population
at large, nor is capable of understanding the
nature of a summons ' 474
c. Notification to Attorney- General 474
d. Instruction of Attorney-General to County Attorney 475
e. Appointment of legal counsel for the propositus 475
f . Notification of State Eugenicist 476
g. Subpoena for witnesses 476
h. Summons for jury 476
7. Judgment and Order.
a. Verdict of jury 477
b. Judgment of the court. •• 477
c. Order to State Eugenicist for the eugenical sterilization
of a cacogenic person in the population at large 478
d. Order to State Eugenicist for the- eugenical sterilization
of a cacogenic person who is an inmate of a cus-
todial institution ^ 479
464 Suggested Forms eor Use of Eugenicist, Court, Etc.
c. Order to responsible head of custodial institution 480
f. Order to State Eugenicist for the temporary suspension
of an order for eugenical sterilization 481
g. Order to a cacogenic person whose eugenical sterilization
has been temporarly suspended, to report periodically
to the State Eugenicist 482
h. Order to State Eugenicist for the eugenical sterilization
of a cacogenic person, the original order for whose
sterilization has been temporarly suspended 483
8. Execution of Order.
a. Contract with surgeon or physician to eugenically sterilize
(1) a cacogenic person in population at large 484
(3) a cacogenic person who is an inmate of a cus-
todial institution 485
b. Report of surgeon or physician to State Eugenicist 486
c. Return of State Eugenicist to court in case of the eugen-
ical sterilization of a, cacogenic person in the popula-
tion at large 487
d. Return of State Eugenicist to court in case of the eugen-
ical sterilization of a cacogenic person who is an in-
mate of a custodial institution 488
e. Semi-annual return of State Eugenicist to the court in
case an original order for eugenical sterilization has
been temporarily suspended 489
9. Institutional Data kept by State Eugenicist.
a. Roster of custodial institutions 490
b. Monthly institutions report to State Eugenicist of acces-
sions and losses 492
10. Record of an Individual Case of Sterilization . . . . : 493
a. Case record of eugenical sterilization 493
11. Appropriations . .- 494
a. Working draft of appropriations section to be inserted in
the proper place in the state's appropriation bills,
according to the legislative practice of the particular
state 494
Form la.
CASE RECORD BY STATE EUGENICIST.
a. Historical Record.
Case number Investigation begun :
(Dat«) (If ordered. Indicate wben)
I. The Individual.
1. Full name (in case of a married woman record both maiden and married
names) : -
2. Home address:
3. Date of birth : 4. Sex :
5. Birthplace:
6. Personal identification (10 lines, and photograph) :
7. Is this person an inmate of a custodial institution?..
(Tee or No)
a. Name of institution :
b. Address of same:
c. Inmate's institutional number reference:
d. When admitted: e. Classification or diagnosis:
f. Name the parent, guardian, or next friend or acquaintance:
g. Address of same :
Suggested Forms for Use of Eugenicist, Court, Etc.
465
II.
III.
Eugenical Investigation.
1. Name of field worker on case:
8. History and abstract of investigation: (3 pages) (The original field notes on
personal and family history together with pedigree-charts might well accompany
this schedule in a separate folder, but having the same case reference number.
Abstract should contain data specially pertinent to determining the potential
parenthood of socially inadequate offspring and the cacogenic personality of the
particular subject.)
3. Opinion of State Eugenicist:
(a) Is a potential parent of socially inadequate offspring,
according to the definition of such given by the Eugenical Sterilization Law?
Signed Date signed:
(Tes or No) State Eugenicist
(b) Is - a cacogenic person, according to the definition
given by the Eugenical Sterilization Law?
Signed Date signed:
(Tea or No) State Eugenicist
Court Proceedings.
1. Name and seat of Court of Record petitioned:
Date petitioned: 3. When notified by Court of date
set for hearing and trial
Date set for hearing and trial:
Counsel for propositus: Address:
Witnesses :
g,
Name
Address
Remarks
7. Notes on court proceedings:..
8. Decision of court: Is the propositus ordered eugenically sterilized?
(Tes or No)
9. Date of said order:
10. Supplementary orders by the court:
(a) Was supplementary order issued to the State Eugenicist suspending the
execution of the original order for eugenical sterilization and ordering semi-
annual reports?
(Tea or No)
(b) Was the propositus ordered to report periodically to the State Eugenicist?
(Tes or No)
If so, date of such order..
Dates reported
Place
To whom reported
Evidence of
non-reproduction
466
Suggested Forms for Use of Eugenicist, Court, Etc.
Date of return to court covering the evidence of non-reproduction.
Court Judge Seat.
Dates
Substance of Return
(c) Was an order issued by the Court to the State Eugenicist to proceed with
the execution of the order previously suspended?
(Tm or No)
If so, date of such
(d) Was the responsible head of custodial institution ordered to admit and to
cooperate with State Eugenicist in enforcing the order for eugenical steriliza-
tion?
(Yes or No)
Address of same: __.
Date of such supplementary order:
11. Additional records:
IV. Execution of Order.
1. Name of surgeon or physician:
Address of same:
3. Type of operation ordered:
Notes in relation thereto:
3. Nature of contract with physician or surgeon:
4. Date of operation or treatment:
5. Date on which the State Eugenicist received the report of the surgeon or
physician:
6. Date of return to court of affidavit of State Eugenicist, stating that the particular
cacogenic person was duly sterilized eugenically, in accordance with the order of
the court:
(Here file copy of the particular return.)
RECORD OF INVESTIGATION BY STATE EUGENICIST.
1. Name of subject 2. Case number:
3. Name of field worker: ,
4. Dates of investigation :
6. Sources of information:
Name
Address
Relationship
Notes on first-hand investigations of natural physical, physiological and psycho-
logical traits, personal history, and family trait-pedigree of the subject (Note:—
The investigations of the State Eugenicist must of necessity be primarily those
of scientific inquiries into the hereditary constitution of the subject of each
particular investigation under the eugenical sterilization, statute. Schedules in
Suggested Forms for Use of Eugenicist, Court, Etc. 467
the form of questions with spaces for answers are much less preferable than
reports by persons trained in the scientific study of human heredity, because each
report must be fitted to the particular case. It is suggested that the succeeding
sheets of the form consist of blank sheets for descriptive notes and of cross-
ruled paper for plotting pedigrees. As a typical example of effective field and
pedigree investigations needed for the determination of the question of fact
relative to potential parenthood of socially inadequate oifspring, reference is made
to the report of Dr. David F. Weeks, Superintendent of the New Jersey State
Village for Epileptics, at Skillman, in the matter of his investigations into the
case and family histories of one, Alice Smith, an inmate of said institution, and
the subject of the test case in New Jersey. See Chapter VIII.
Fonn Ic.
REPORT TO STATE EUGENICIST CONCERNING NON-REPRODUCTION
BY A CACOGENIC PERSON THE EUGENICAL STERILIZATION
OF WHOM HAS BEEN TEMPORARILY SUSPENDED.
1. Name of Subject:
2. Case number:
3. Name of field-worker or examiner on case:
4. Date on which eugenical sterilization was ordered temporarily suspended:
5. Date of report, interview or examination: _
6. Place of same:
7. Notes on report, interviews or examination: (Give names and addresses of
persons interviewed or examined, or who report pertinent facts. Review
evidence from testimony or examination concerning the proof of non-reproduc-
tion by the propositus.)
Form 2.
INFORMATION OR COMPLAINT BY PRIVATE CITIZEN
TO STATE EUGENICIST.
1. Name of person complained against:
Case number: Address:
3. Name of person making complaint:
Address: Position: ,
3. Reason for making complaint : „
Affidavit :
State of : ,
County of :
, being duly sworn, says:
I, , am a citizen of the
state of. , and a resident of , of said
state. I do solemnly swear that to the best of my knowledge and belief the
follovvring facts are true: (State facts tending to indicate the potential parenthood
of socially inadequate offspring on the part of the particular person complained
against. Give also his or her (1) name, (3) residence, (3) age, (4) sex, (5) marital
condition, (6) parenthood, (7) social reactions, (8) physical, mental and temper-
amental qualities, and (9) family history.)
(Signed)..
Subscribed and sworn to before
me this day of. ,
19
.., Notary Public,
..County.
468 Suggested Forms for Use of Eugenicist, Court, Etc.
RECORD OF AN INMATE OF A CUSTODIAL INSTITUTION PREPARED
FOR THE USE OF THE STATE EUGENICIST IN ACCORDANCE WITH
SECTION 8 OF THE MODEL EUGENICAL STERILIZATION LAW.
Name of inmate : Case number :
(For State Eugenldst)
Name of institution:
Location:
Date State Eugenicist requested institution to provide data concerning the particular
subject: Date by which the return of this schedule
is requested: Date this schedule was received by State
Eugenicist:
INFOB3U.TIOV.
1. Full name of inmate: (In case of a married woman give both her maiden
name and married name.)
2. Date of birth: 3. Sex:
4. Birthplace: 5. Date admitted to the
Institution: 6. Institutional reference number:
7. Classification or diagnosis:
8. Personal identification: (10 lines and photograph)
9. Home address (or address from which committed or admitted) :
10. Name of father: ~
Address, if living: _
11 . Name of mother :
Address, if living:
13. Name of guardian or acquaintance: _
Relation: _
Address: „
13. Case history: (Copies of diagnosis-report and case-history in institutional
records, and further data concerning individual and his or her family history.
This record should be made as complete as possible, as it is necessary for
determining not only the hereditary constitution of the inmate, but also for the
condition of the individual before and after sterilization. It will thus aid in
determining the physiological and psychological effects of the operation.)
(3 or 3 pages should be allotted for this item.)
14. Was this individual eugenically sterilized?
(Yes or No.)
a. Date : b. Place :
c. Surgeon; d. Type of operation
15. Date of discharge, release or parole of inmate from institution:
10. Further history of case (Secure through follow-up, parole or field work with
special reference to the effects of the operation. Record field notes from time
to time, making sure always to date memoranda. Record general and specific
morphological, pathological, physiological and psychological effects of the
operation; emotional expression and control; mental, criminal, social, sex-
masturbation, desire for sex relations, economic effects of the operation. Imme-
diate and remote effects, special reference to comparison with conditions before
the operation.) (2 pages.)
17. Remarks:
Suggested Forms for Use oe Eugenicist, Court, Etc. 469
Form 4.
REPORT OF STATE EUGENICIST.
To the Court of the County of"
-■ , State of :
In the matter of the Opinion, Evidence and
Petition of , , State
Eugenicist, in accordance with Chapter
of the Session Laws of of the State
of , known as the Eugenical
Sterilization Law, presenting the opinion and evi-
dence therefor that one, ,
of , is a potential parent
of socially inadequate offspring, and finally praying
for the legal determination of the question of fact.
State of ,
- County.
, being duly sworn, says:
I hold the office of State Eugenicist of the State of ,
and, in accordance with Chapter of the Session Laws of
State, I herewith respectfully present the following opinion, evidence and petition:
a. Opinion: Having duly investigated the natural qualities, the environment and
the pedigree of one, , of ,
I hold the opinion that the said is a potential parent
of socially inadequate offspring within the meaning of the aforesaid Act.
b. Evidence: The following record presents the history and biological evidence
upon which the above stated opinion is based. (Here insert copy of the abstract of
eugenical investigations. Detailed reports and field notes may be appended as supple-
mentary evidence or retained for the use of the State Eugenicist or his agents in giving
testimony before the court. Doubtless the principal witness for the State in most of
these cases will be the Field Worker, who actually makes the pedigree-study.)
c. Petition: I respectfully pray that the Honorable Court to which this petition
is addressed may act under the above named statute to the purpose that there may be a
legal determination of the fact, whether the said
of. is, as alleged in the aforesaid Opinion, a potential
parent 'of socially inadequate offspring within the meaning of the said
Chapter of the Session Laws of of the State of
state GusenlclBt.
Subscribed and sworn to before
me this day of
, 19
: , Notary Public,
County.
470
Suggested Forms for Use of Eugenicist, Court, Etc.
FoTin 5a.
ACTION BEGUN BY PRIVATE CITIZEN.
INDIVIDUAL PETITION TO A COURT OF RECORD TO DETERMINE
THE POTENTIAL PARENTHOOD OF SOCIALLY INADEQUATE
OFFSPRING OF A CERTAIN NAMED INDIVIDUAL.
In the matter of a petition b^ ,
of , a citizen of the State of
, in accordance with Sec-
tion of the Session Laws of 19 of the
State of , known
as the "Eugenical Sterilization Law." Presenting
evidence that one ,
of , is a potential
parent of socially inadequate ofiFspring, and praying
for the legal determination of the question of fact.
To the Court of the County of..
State of
State of..
-County.
.., being duly sworn, says:
I am a citizen of the State of , and a resident of..
of said State. I am above twenty-one years of age, and of sound mind, and claim
respected character. I do solemnly swear that to the best of my knowledge and belief
the following facts are true:
a. Evidence. [State facts tending to prove that the particular person complained
against is a potential parent of socially inadequate offspring. Give (1) Name, (2) Address,
(3) Age, (4) Sex, (5) Marital condition, (6) Parenthood, (7) Social reactions, (8) Physical,
physiological and psychological reactions, (9) Environment, and (10) Family history.]
b. Petition. In view of the foregoing facts, I firmly believe that procreation on the
part of said of would result in the produc-
tion of socially inadequate offspring, who would constitute a serious menace to the
soundness of the human stock of future generations, in which soundness I and my
immediate kin are vitally concerned. I therefore respectfully pray that the Honorable
Court to which this petition is addressed may take action under Chapter of the
Session Laws of 19 of the State of to the purpose that there
may be a legal determination of the question of fact whether the aforesaid -
of is, as alleged, a potential parent of socially
inadequate offspring within the meaning of the said Chapter of the Session
Laws of 19........of the State of
(Signed)..
Complalnut and FettUoDet.
Subscribed and sworn to before
me this - day of
19
., Notary Public,
..County.
Suggested Forms for Use of Eugenicist, Court, Etc. 471
Form 9b.
ORDER OF THE COURT DENYING PRIVATE PETITION.
State of. ,
■_• County.
To , a Petitioner to this Court:
WHEREAS, the above named petitioner has presented to this Court in due form
as prescribed by Chapter of the Session Laws of 19 of the State of
, known as the "Eugenical Sterilization Law," evidence concern-
ing the potential parenthood of socially inadequate offspring of one ,
of. , and further has duly petitioned this Court to determine legally
the question of fact in the matter; and,
WHEREAS, this Court having duly considered the evidence presented and being
of the opinion that said evidence is not sufficient to warrant further procedure in the
matter, I, therefore, under the authority vested in me by the aforenamed statute of this
State, do hereby deny the said petition.
GIVEN under my hand and seal this day of , 19
Judge of the Court.
Form 5c.
ORDER OF COURT TO STATE EUGENICIST TO INVESTIGATE
A PARTICULAR CASE.
State of. ,
County.
To , State Eugenicist of the State of :
WHEREAS, of. has duly presented
to this Court evidence concerning the potential parenthood of socially inadequate offspring
of one , of , and further has duly petitioned
this Court to determine legally the question of fact in the matter, all as prescribed by
Chapter. of the Session Laws of 19 , known as the Eugenical Sterilization
Law; and,
WHEREAS, this Court having duly considered the evidence presented in this said
petition and finding it adequate to justify further procedure, therefore, I, in accordance
with the aforesaid statute, do command you, , State Eugenicist
of the State of , to make further investigation in reference to the
potential parenthood of socially inadequate offspring of the aforenamed ,
of. ; ; , and within ninety days of the date of this order to report your
findings in this matter back to this Court, together with an opinion as to whether the
aforenamed , of , is in fact a potential parent of
socially inadequate offspring.
■WITNESS my hand this day of. , 19
Judge of the > Court
472 SuGGEjsTDD Forms for Use: of Euge^nicist, Court, Etc.
Form 6a.
PROCLAMATION APPOINTING A TIME AND PLACE FOR HEARING.
In the matter of the legal determination of the
potential parenthood of socially inadequate off-
spring of one , of ,
as prescribed by Chapter of the Session I
Laws of 19 , of the State of J
State of ,
County.
To Whom It May Concern:
TAKE NOTICE THAT, WHEREAS, on the day of..
19 , (Name State Eugenicist or private citizen making
allegation and petition) in due form as provided by Chapter of the Session Laws
of 19 , of the State of .'. , has presented to this Court evidence
concerning the potential parenthood of socially inadequate offspring on the part of one
, of ; and,
WHEREAS, said has duly petitioned this Court, under the
aforesaid statute, legally to determine the question of fact in the matter, I, therefore, in
accordance with the aforesaid statute, do hereby appoint the day of ,
19 , at o'clock M., at the usual seat of this Court at ,
as the time and place for a hearing in the aforesaid matter.
Witness my hand this day of , 19
Judge of Uie Court
Form 6bl.
SUMMONS TO PROPOSITUS IN CASE SUCH PROPOSITUS IS NOT AN
INMATE OF A CUSTODIAL INSTITUTION AND IS PERSON-
ALLY CAPABLE OF UNDERSTANDING THE
NATURE OF A SUMMONS.
State of ,
!County.
To the Sheriff (or Constable of ) of said County:
You are hereby commanded to summon ,of. .'. ,
to appear before this Court at , on the day of ,
19 , at o'clock M., at which time and place proceedings for the deter-
mination of the potential parenthood of socially inadequate offspring of said
of will be duly instituted, in accordance with Chapter of the
Session Laws of 19 , of the State of , known as the Eugenical
Sterilization Law. You will make due return of this writ on the day of
, 19
WITNESS my hand this day of , 19
Judge of Uie Court.
Suggested Forms for Use op Eugenicist, Court, Etc. 473
Form 6b2.
ORDER TO GUARDIAN OR CUSTODIAN OF PROPOSITUS IN CASE SUCH
PROPOSITUS IS AN INMATE OF A CUSTODIAL INSTITUTION
OR LIVES UNDER GUARDIANSHIP IN THE
POPULATION AT LARGE.
State of ,
County.
In the matter of the legal determination of the \
potential parenthood of socially inadequate off- I
spring on the part of , of
County.
- I
■i
To , of , the legal guardian (or
custodian) of :
WHEREAS, on the day of , 19 ,
(State Eugenlclst of the State of
or by one , a citizen of the State of over twenty-one years
of age. and claiming respectable character)
duly submitted to this Court in the State of , an allegation that one,
, of , is, under the meaning of the said statute,
a potential parent of socially inadequate offspring; and,
WHEREAS, said allegation was accompanied by supporting evidence in due •
form; and,
WHEREAS, this Court has duly set the day of , 19 ,
at o'clock M., at (name the seat of the
Court) as the time and place for the institution of proceedings for the legal determination
of the above-stated allegation;
THEREFORE, I, , , a Judge of
County, in accordance with the aforesaid statute, do hereby command that you, as the
legal guardian (or custodian) of the said , of ,
appear personally, or by duly authorized agent, conveying the said ,
before this Court at the aforesaid time and place, at which time and place proceedings
for the legal determination of the question of fact in the afore-stated allegation will be
duly furthered.
WITNESS my hand this day of , 19
Judge of the Court.
474 SuGGESTSD Forms for Use of Eugenicist, Court, Etc.
Foim <II3.
ORDER FOR THE ARREST AND PRESENTATION TO COURT OF THE
PERSON OF THE PROPOSITUS, IN CASE SUCH PROPOSITUS IS
NEITHER AN INMATE OF A CUSTODIAL INSTITUTION, NOR
LIVING UNDER GUARDIANSHIP IN THE POPULATION AT
LARGE, NOR IS CAPABLE OF UNDERSTANDING
THE NATURE OF A SUMMONS.
State of. ,
County.
To the Sheriff (or Constable of ) of said County:
WHEREAS, on the. day of , 19....
(State EuEeulcUt of tbe
State of, or a dtlzen of the State of over twenty-one yean of aie, and ctalmlni
reapectable character.)
duly submitted to this Court, in accordance with Chapter of the Session Laws
of 19 , in the State of , an allegation that one - ,
of — , is a potential parent of socially inadequate offspring; and,
WHEREAS, said allegation was accompanied by supporting evidence in due
form; and,
WHEREAS, the day of , 19 , at o'clock. M.,
at (name seat of Court), has been duly appointed as the time
and place for the institution of proceedings for the legal determination of the above-
stated allegation;
THEREFORE, you are hereby commanded to arrest the said
ol and aid him (or her) safely tq convoy before me at the
aforesaid time and place, at which time and place proceedings for the legal determination
of the question of fact in the aforesaid matter will be duly furthered.
Given under my hand this day of — , 19
}
Judge of the . . .
form 6c.
NOTIFICATION TO ATTORNEY-GENERAL.
In the matter of the legal determination of the"
potential parenthood of socially inadequate off-
spring, of one ,
of , as prescribed by
Chapter of the Session Laws of 19 ,
of the State of
State of ,
County.
To the Attorney-General of the State of
You will please take notice that under Chapter of the Session Laws of
19 , of the State of , proceedings have been duly instituted in this
Court for the legal determination of the question of fact whether, as alleged, one,
.... . , of , is a potential parent of socially inade-
quate offspring, as defined by the above-named statute; and further that the
day of. , 19 , at o'clock M., at the usual seat of this Court
at , have been duly appointed as the time and place for a hearing in the
aforesaid matter.
This notification is made in consequence of a provision of the aforesaid Act, which
makes the Attorney-General the legal counsel of the State in such matters.
WITNESS my hand this day of , 19
Judn of the Oonit.
Suggested Forms for Use oe Eugenicist, Court, Etc. 475
Form 6d.
INSTRUCTIONS OF ATTORNEY-GENERAL TO COUNTY ATTORNEY.
In the matter of the legal determination of the
potential parenthood of one ,
of , as prescribed by Chapter
of the Session Laws of 19 , of the
State of.
>
To , Esq., the County Attorney
of. - , County, State of
The Attorney-General of the State having been duly notified by the
Judge of the Court of. County, that on the
day of. ,19 — , at o'clock M. — at the usual seat of said Court, the
hearing will be had in the matter of the legal determination of the question of fact
whether, as alleged, one , of ,
is a potential parent of socially inadequate offspring, as defined by Chapter of
the Sessions Laws of 19 of the State of.
Pursuant to further provisions of this statute, you, as the County Attorney of said
County, are hereby instructed to confer with the complaining wit-
nesses in the case, and to aid in the capacity of legal counsel for the State in its efforts
in this particular case to protect by due process of law the hereditary qualities of fu-
ture generations.
Attorney General of the State of '
Form 6e.
APPOINTMENT OF LEGAL COUNSEL FOR THE PROPOSITUS.
In the matter of the legal determination of the po- ^
tential parenthood of socially inadequate offspring
of one -,. , of
, as prescribed by
Chapter of the Session Laws of 19 , of
the State of.
'.....Court County.
WHEREAS, in accordance with Chapter of the Session Laws of 19 , of
the State of. , legal action having been duly instituted in the Court
for -the legal determination of the question of fact whether, as alleged, one
, of. , is a potential parent of socially inadequate
offspring; and,
WHEREAS, it is the opinion of this Court that the ends of justice would be more
surely served by the appointment of legal counsel to represent the aforesaid
of. , in a hearing having for its purpose the legal determination of the
aforesaid allegation, I therefore, in accordance with the aforesaid statute, and with
Chapter (give reference to any other statute of the State which governs the ap-
pointment of legal counsel for indigent dependents) hereby appoint ,
Esq., Counselor-at-Law of the City of. , to represent said
of. in the capacity of legal counsel in the aforesaid hearing. The com-
pensation to be allowed said counsel shall be... dollars a day while he is actually
engaged in this matter.
I direct that this order be filed in the archives of this Court and that within ten days
from this date a copy be served on said , counsel appointed to
represent said
Judie of the Court
>
476 Suggested Forms for Use of Eugenicist, Court, Etc.
Form 6f.
NOTIFICATION OF STATE EUGENICIST.
In the matter of the legal determination of the'
potential parenthood of socially inadequate off-
spring by one of
, as prescribed by Chapter
of the Session Laws of 19 , of the
State of
State of. ,
County.
To „ , State Eugenicist of the State of :
You are hereby notified that on the day of , 19 ,
at o'clock M., at the usual seat of this Court at , a hearing
in the aforesaid matter will be held.
This notification is made in consequence of the provisions of Chapter of the
Sessions Laws of 19 , of the State of , that the Court before which such a hearing
is held shall notify the State Eugenicist concerning the time, place and nature of such
hearing.
Judge of the - Court.
Form 6g.
SUBPOENA FOR WITNESSES.
State of ,
County.
To the Sheriff (or any Constable) of said County:
You are hereby commanded to summon of
to be and appear before this Court at , on the ~ day of
, 19 , at o'clock M., to testify the truth in the matter of the
legal determination of the question of fact whether one .*. ,
of. , is, as alleged, a potential parent of socially inadequate offspring.
HEREOF fail not, under penalty of the law, and have you then and there this writ
Given under my hand this day of , 19
Judce ot the Court
Form 6h.
SUMMONS FOR JURY.
State of ,
County.
To the Sheriff (or any Constable) of said County:
You are hereby commanded to summon
to appear before this Court on the day of. ,
19 , at o'clock M., at the usual seat of this Court at ,
to Serve as jurors in a case pending before me, then and there to-be heard. And this they
shall in no wise omit. And have then and there this writ with your doings thereon.
Given under my hand this day of 19
Judge ot the Court.
Suggested Forms for Use of Eugenicist, Court, Etc.
477
Torm 7a.
VERDICT OF JURY.
In the matter of the legal determination of the
potential parenthood of socially inadequate off-
spring of one
of , as prescribed by Chap- *
ter of the Session Laws of. 19 , of the
State of
Court.
..County.
We, the jury, duly paneled and sworn in the above entitled hearing, do find that the
aforesaid , of , is (or is not), as alleged, a
potential parent of socially inadequate offspring, and is (or is not), therefore, a cacogenic
person.
Dated:
Form 7b.
JUDGMENT OF THE COURT.
In the matter of the legal determination of the "
potential parenthood of socially inadequate off-
spring of one , of
, as prescribed by Chapter
of the Session Laws of 19 , of the State
of
\
State of. ,
County.
(The Court's Review of Testimony.)
In view of the foregoing facts, I find that the aforenamed ,
of. , is (or is not), as alleged, and within the meaning of the afore-
said statute, a potential parent of socially inadequate offspring, and therefore, in accord-
ance with this decision and the aforesaid statute, do hereby declare the aforesaid
of to be (or not to be) a
cacogenic person.
Judge of the Court.
Dated:
478 Suggested Forms for Use of Eugenicist, Court, Etc.
Form 7c.
ORDER TO STATE EUGENICIST FOR THE EUGENICAL STERILIZATION
OF A PERSON IN THE POPULATION AT LARGE.
In the matter of the legal determination of the"
cacogenic personality of one ,
of , as prescribed by
Chapter of the Session Laws of 19 , of
the State of
State of ,
County.
WHEREAS, by the decision of this Court (or by verdict of a Jury duly sworn and
paneled by this Court), one , of ,
in accordance with Chapter of the Session Laws of 19 — .... of the State of
, known as the "Eugenical Sterilization Law," was duly adjudged
and declared to be a cacogenic person, and as such is a menace to the natural hereditary
capacities of Subsequent generations. THEREFORE, in accordance with the above-
named statute and judgment, you are hereby commanded to arrest the said ,
and to cause the said to be eugenically sterilized in a skillful, safe, and
humane manner, with due regard to the possible thesapeutic benefits of such treatment or
operation, obtaining, if possible, the consent and cooperation of said
and of his _
(or her) (custodian, parents or ^ardian)
You are further commanded to execute the order at a date as early as is consistent with
the above-stated conditions, and at the consummation of this particular case of eugenical
sterilization and the convalescence therefrom, you will release said
from your custody, but said shall not be released from your custody
until the aforesaid order has been duly executed.
You are further commanded, upon the execution of this order, to make due return
under oath of the fact to this Court, making sure to prove the identity of the individual
eugenically sterilized, and to describe the time, place, type and outcome of the particular
operation or treatment.
WITNESS my hand this day of , 19
Judse of the ' Court.
Suggested Forms for Use of Eugenicist, Court, Etc. 479
S'otm Id.
ORDEK TO THE STATE EUQENICIST FOR THE EUGENICAL STERILIZA-
TION OF A PERSON WHO IS AN INMATE OF A CUSTODIAL
INSTITUTION.
In the matter of the legal determination of the "
potential parenthood of socially inadequate off-
spring by one , of
, as prescribed by Chapter
of the Session Laws of 19 of the
State of.
State of- ,
County.
To , State Eugenicist of the State of..
WHEREAS, by the decision of this Court (or by verdict of a jury, duly sworn and
paneled by this Court) one, , an' inmate of ,
a custodial institution located at , in accordance with Chapter
of the Session Laws of 19 of the State of , known as the
"Eugenical Sterilization Law," was duly adjudged to be a cacogenic person, and as such
is a menace to the hereditary capacities of subsequent generations.
THEREFORE, in accordance with the above-named statute and decision, you are
hereby commanded to cause the said of
to be eugenically sterilized in a skillful, safe, and humane manner, with due regard to
the possible therapeutic benefits of such treatment or operation, obtaining, if possible, the
consent and cooperation of said and of
(his or her) (custodian, parent or guardian)
This order in the normal course shall be executed before the discharge, release or
parole of the aforesaid from the custody of aforesaid
institution; Provided, that if, for any cause, as contemplated by the aforesaid statute, the
execution of this order is not consummated before the time previously set for the dis-
charge, release, or parole of said from the custody of said institution,
you are hereby commanded to arrest the said at the instant
of discharge, release, or parole from the custody of
(his or her)
aforesaid institution, and thence to proceed with the execution of this order, to make
due return under oath of the fact to this Court, making sure to prove the identity of the
individual eugenically sterilized, and to describe the time, place and outcome of the
particular operation or treatment.
WITNESS my hand this day of , 19
Judge of the Court.
480 Suggested Forms for Use op Eugenicist, Court, Etc.
Form 7e.
ORDER TO RESPONSIBLE HEAD OF CUSTODIAL INSTITUTION.
In the matter of the legal determination of the j
potential parenthood of socially inadequate off- I
spring of , of ,
as prescribed by Chapter of the Session
Laws of 19 , of the State of
State of ,
County.
To , the Responsible Head of..
WHEREAS, one , of , an
inmate in the aforenamed custodial institution, has been declared by this Court to be a
cacogenic person; and,
WHEREAS, on day of , 19 , the State Eugenicist
of the State of was duly commanded to cause the said
to be eugenically sterilized in a skillful, safe and humane manner, in accordance with the
provisions of Chapter of the Session Laws of 19 , of the State of
THEREFORE, in accordance with further provisions of said statute, you are hereby
commanded to exiend to said State Eugenicist and the physicians and surgeons appointed
by him for the purpose, free access to the person of said .' , an
inmate of the aforesaid institution, for the purpose of executing this order, and further
for said eugenical sterilizing operation or treatment to provide the hospital accommoda-
tions of said institution best adapted to such operation or treatment, and further to extend
your full cooperation in the execution of said command.
You are further commanded that if, on account of lack of adequate hospital facilities
in said custodial institution, or the shortness of time elapsing between the issuance of
this order and the time previously set for the discharge, release or parole of said
, the State Eugenicist does not execute the aforesaid order for
eugenical sterilization before the time previously set for the discharge, release or parole
of said , you will not fail, under penalty of the law to discharge,
release or parole, as the case may be, the said into the custody of
whosoever may be the State Eugenicist of the State of at such
particular time.
WITNESS my hand, this day of , 19
Judge of the - Court.
Suggested Forms eor Use op Eugenicist, Court, Etc. 481
Form It.
ORDER TO THE STATE EUGENICIST FOR THE TEMPORARY SUSPENSION
OF AN ORDER FOR EUGENICAL STERILIZATION.
In the matter of the legal determination of the
potential parenthood of socially inadequate off-
spring of , as prescribed
by Chapter of the Session Laws of 19
of the State of
State of. ,
County.
To , State Eugenicist of the State of. :
WHEREAS, in accordance with the Eugenical SteriHzation Law of the State of
, one ; was, on the day of. ,
19 , by due process of law in this Court, declared to be a cacogenic person in. accord-
ance with the definition of the above-named statute; and,
WHEREAS, this Court on the day of 19 , duly
ordered the State Eugenicist of the State of to cause the said
to be eugenically sterilized; and,
WHEREAS, in the opinion of this Court, the conditions are such that the state will,
for the time being, be protected from reproduction by the said
of ;
THEREFORE, in accordance with the above-named act, and the authority by it
in me vested, I hereby command the State Eugenicist of the State of
to suspend the execution of the order for the eugenical sterilization of the said
of. , until further commanded by this Court.
The State Eugenicist is further commanded to keep in touch with the said ~
of. , and to report to this Court on June first and December first of each
year concerning the protection of the State from reproduction on the part of the said
of
WITNESS my hand this day of. , 19..
Judge of the ' Court.
482 Suggested Forms ^or Use o^ Eugenicist, Court, Etc.
Form 7g.
ORDER TO A CACOGENIC PERSON WHOSE EUGENICAL STERILIZATION
HAS BEEN TEMPORARILY SUSPENDED, TO REPORT PERIODICALLY
TO THE STATE EUGENICIST.
In the matter of the legal determination of the
potential parenthood of socially inadequate off-
spring of , as prescribed
by Chapter of the Session Laws of 19
of the State of
State of ,
County.
To , of
WHEREAS, on the ..,- day of. -..., 19 , in this Court,
you, the said of were dul3r declared to be a cacogenic
person, and as such were ordered eugenically sterilized; and,
WHEREAS, in further accordance with the Eugenical Sterilization Law, this Court
has been duly supplied with apparently trustworthy evidence that, for the time being,
the State will be protected against your reproduction; and,
WHEREAS, this Court has duly ordered the State Eugenicist to defer the execu-
tion of the order for your eugenical sterilization, and has further commanded the said
State Eugenicist to report on the first day of June and the first day of December of each
year to this Court concerning the validity of this protection.
THEREFORE, you are hereby commanded to report to the State Eugenicist or his
duly appointed agent twice annually, at the time and place named by the State Eugenicist,
and there submit to an examination, giving proof concerning the validity of this pro-
tection.
GIVEN under my hand and seal this day of. _ _ , 19 .
Judxe ot tha Court.
Suggested Forms ^or Usk o^ Eugenicist, Court, Etc. 483
Form 7h.
ORDER TO THE STATE EUGENICIST FOR THE EUGENICAL STERILIZA-
TION OF A CACOGENIC PERSON, THE ORIGINAL ORDER FOR WHOSE
STERILIZATION HAS BEEN TEMPORARILY SUSPENDED.
In the matter of the legal determination of the
potential parenthood of socially inadequate oil-
spring of. , as prescribed
by Chapter of the Session Laws of 19
of the State of-
State of ,
County.
To , State Eugenicist of the State of. :
WHEREAS, in accordance with the Eugenical Sterilization Law of the State of
, one was, on the day of
, 19 , by due process of law in this Court, declared to be a cacogenic
person in accordance with the definition of the above-named statute; and,
WHEREAS, this Court on the day of. , 19.. , duly
ordered the State Eugenicist of the State of to cause the said
to be eugenically sterilized; and,
WHEREAS, apparently trustworthy evidence had been presented to this Court that
the State would, for the time being, be amply protected against reproduction by the
said ; and,
WHEREAS, in accordance with said evidence, this Court temporarily suspended the
order for the eugenical sterilization of the said ; and,
WHEREAS, it now appears on the evidence presented by the State Eugenicist to
this Court that the State is no longer amply protected against reproduction by the said
THEREFORE, in accordance with the above-named act and the authority by it in
me vested, I hereby command the State Eugenicist of the State of
to proceed fortwith with the execution of the original order for the eugenical sterilization
of.
WITNESS my hand this day of. , 19
Judge of the ■ Court.
484 Suggestbd Forms for Use ojp Eugbnicist, Court, Etc.
CONTRACT WITH SURGEON OR PHYSICIAN TO STERILIZE EUQENICAL-
LY AN INDIVIDUAL IN THE POPULATION AT LARGE.
Subject:
The eugenical sterilization of one ,
of , as commanded by the
Court of on the day
of , 19 , in accordance with
Chapter of the Session Laws of 19
of the State of
THIS AGREEMENT entered into this day of , 19 ,
by and between the State of , represented by ,
State Eugenicist of said State, party of the first part, and Dr ,
of. , physician and surgeon, duly licensed by said State, party of
the second part.
Party of the first part agrees to present the person of one ,
of , duly ordered by the Court of.
County, on the .....day of , 19 , in accordance with
Chapter of the Session Laws of 19 of the State of. , to
be eugenically sterilized, to the party of the second part (name and locate hospital or
office), on or before the day of , 19
Party of the second part agrees to perform upon said _ ,
of , the operation of , which has for its
primary purpose the permanent nullification of the reproductive function, said operation
to be performed in a safe and humane manner, with due regard to the possible thera-
peutical benefits to be derived therefrom, and in full accordance with modern surgical,
sanitary and hospital practice. The party of the second part further agrees to maintain
said in accordance with the aforesaid modern hospital and sani-
tary practice to the satisfaction of the party of the first part during the period of con-
valescence, which period shall be terminated on the judgment and order of the party of
the first part.
Party of the first part agrees to pay to the party of the second part, for the afore-
described services, the sum of dollars, the order for said payment to
be issued upon the receipt by the party of the first part of a sworn statement by the
party of the second part confirming the identity of the person eugenically sterilized,
describing the time, place and nature of the operation or treatment, and the outcome
thereof.
If for any cause the party of the first part does not present the aforesaid subject of
the order of eugenical sterilization on or before the day of ,
19 , this contract shall become void.
IN WITNESS whereof we have hereunto set our hands this day
of. , 19
The State of
by , State Eugenicist, party of the first part.
, M. D., party of the second part.
Suggested Forms for Use of Eugenicist, Court, Etc. 485
Form 8a2.
CONTRACT WITH SURGEON OR PHYSICIAN TO STERILIZE EUGENICAL-
LY AN INDIVIDUAL INMATE OF A CUSTODIAL INSTITUTION.
Subject:
The eugenical sterilization of one
of , as prescribed by Chapter
of the Session Laws of 19 of the
State of
THIS AGREEMENT entered into this day of , 19 ,
by and between the State of , by , State
Eugenicist of said State, party of the first part, and Dr ,
of , a physician or surgeon duly licensed by said State, party of
the second part,
WITNESSETH: Party of the first part agrees on or before the day
of , 19 , to provide access for party of the second part and his assist-
ants to the person of one , of , an
inmate of , a custodial institution located at ,
said inmate having been duly ordered by the Court of
County, on the day of , 19 , in accordance with Chapter
of the Session Laws of 19 of the State of , to be
eugenically sterilized.
Party of the second part agrees to perform upon said
of , the operation of , which has for its
primary purpose the permanent nullification of the reproductive function, said operation
to be performed in a skillful, safe and humane manner, with due regard to the possible
therapeutical benefits to be derived therefrom, and in full accordance with modern
surgical, sanitary and hospital practice.
Party of the first part agrees to furnish to the party of the second part due evidence
of legal court order for the eugenical sterilization of the above-named ,
of , and to pay to the party of the second part, for the afore-
described services, the sum of dollars, said payment to be made upon
the receipt by the party of the first part from the party of the second part of a sworn
statement confirming the identity of the person eugenically sterilized, describing the.
time and place of the operation or treatment and the outcome thereof.
IN WITNESS whereof we have hereunto set our hands this day
of , , 19
The State of
jjy , State Eugenicist, party of the first part.
, M. D., party of the second part.
486 Suggested Forms for Use op Eugenicist, Court, Etc.
rom 8b. - , ;■ ^TjirJUl
REPORT OF SURGEON OR PHYSICIAN TO STATE EUGENICIST.
Subject:
The '^Eugenical Sterilization of one ,
of , as prescribed by Cliapter
of the Session Laws of 19 of the
State of
To , State Eugenicist of the State of :
In accordance with a contract entered into on the day of ,
19 , by , State Eugenicist of the State of ,
party of the first part, and the writer of this report, party of the second part, the party
of the second part hereby reports the following:
1. Name of person eugenically sterilized:
3. Age: • ^
3. Sex:
4. Type of operation:
5. Place of operation:
6. Time of operation:
7. Record: Notes on outcome of operation and convalescence and memorandum
on release of patient:
Respectfully submitted,
M. D.
, being duly sworn, says that he personally performed
the operation above described and that to the best of his knowledge and belief the above
statements are true.
Subscribed and sworn to before me this dav of 10
Notary Public.
State of ,
County.
Suggested Forms for Use of Eugenicist, Court, Etc. 487
Form Sc.
RETURN OF STATE EUGENICIST TO COURT IN CASE OF EUGENICAL
STERILIZATION OF AN INDIVIDUAL IN THE POPULATION AT LARGE.
In the matter of the eugenical sterilization of one \
, of , j
ordered by the Court of the State of J.
, on the day of
, 19
To the Court of , State of :
Pursuant to the command of the Honorable Court aforesaid, issued on the
day of , 19 , to the State Eugenicist of said State, to cause the eugeni-
cal sterilization of one , of..— , the undersigned
State Eugenicist of said State respectfully makes the following return:
The aforesaid , of , of whose identity
I am duly convinced, was arrested by , a deputy of the under-
signed, on the day of , 19 , at ,
and was eugenically sterilized by the operation (or treatment) technically known as
, on the day of , 19 , at ,
by Dr , of , a physician or surgeon duly licensed
by the aforesaid State. Said convalesced as follows :
and on the day of , 19 , was released from the custody
of the State Eugenicist. All in due accordance with the aforesaid order.
Respectfully Returned,
state Eugenidst-
State of ,
County.
being duly sworn, says that the statements in the above
are in accordance with his first-hand knowledge and upon the official reports of his
deputy and assistant and that to the best of his knowledge and belief all of said state-
ments are true.
Subscribed and sworn to before me this day of , 19
Notary Public,
County.
488 SuGGHlsTED Forms for Use of Eugenicist, Court, Etc.
Form 8d.
RETURN OF STATE EUGENICIST TO COURT IN CASE OF EUGENICAL
STERILIZATION OF AN INDIVIDUAL INMATE OF A CUSTODIAL
INSTITUTION.
In the matter of the eugenical sterilization of one "
, of ,
ordered by the Court of the State of
, on the day of I
, 19 J
To the Court of , State of :
Pursuant to the command of the Honorable Court aforesaid, issued on the
day of , 19 , to the State Eugenicist of said State, to cause the eugeni-
cal sterilization of one , of , the undersigned
State Eugenicist of said State respectfully makes the following return:
The aforesaid , of , of whose identity
I am duly convinced, was eugenically sterilized by the operation (or treatment) techni-
cally known as , on the day of. , 19 ,
at , by Dr , of ,
a physician or surgeon duly licensed by the aforesaid State. Said
remained in the custody of the aforesaid Custodial Institution and convalesced as fol-
lows: ,
All of which actions and reports are in due accord with the aforesaid order.
Respectfully Returned,
state EttgraldBt
State of
County.
Subscribed and sworn to before me this day of
19
Notary Public,
County.
SUGGESTED J:<'ORMS FOR UsE OF EuGENICIST, CoURT, EtC. 489
Fonu 8e.
SEMI-ANNUAL RETURN OF THE STATE EUGENICIST TO THE COURT IN
CASE AN ORIGINAL ORDER FOR EUGENICAL STERILIZATION
HAS BEEN TEMPORARILY SUSPENDED.
Office of the State Eugenicist' of the State of :
In the matter of the legal determination of the 1
cacogenic personality of one , |
of - , as prescribed by |
Chapter of the Session Laws of 19 I
Date of this Return :
(June 1 or Dec. 1)
State of. ,
County.
To the Court of , State of :
In compliance with the order of the Honorable Court aforesaid, issued on the
day of , 19 , I, State Eugenicist of the State of
, respectfully submit the following;
(Here the State Eugenicist should report the facts gathered by his field workers, or
submitted by the cacogenic person at the first-hand, in reference to the assurance of non-
reproduction by said cacogenic person.)
Respectfully submitted.
state Eueenicist.
490
Suggested Forms for Use op Eugenicist, Court, Etc.
INSTITUTIONAL DATA KEPT BY STATE EUGENICIST.
LEGAL DEFINITION OF A CUSTODIAL INSTITUTION.
From Section 2, Clause g, of Chapter of the Sessions Laws of 19 , of the
State of , known as the "Eugenical Sterilization Law.''
"g. A custodial institution is a habitation which, regardless of whether its authority
or support be public or private, provides (1) food and lodging, and (2) restraint, treat-
ment, training, care or residence for one or more socially inadequate inmates; provided
that the term custodial institution shall not apply to a private household in which the
socially inadequate member or members are close blood-kin or marriage-relations to,
or legally adopted by, an immediate member of the care-taking family."
Form 9a.
ROSTER OF CUSTODIAL INSTITUTIONS.
(This roster should be revised at least once a year.)
1.
Name of Institution
3.
Where Located
3.
'Year
When
Opened
4.
Name of Responsible
Head
1.
3.
3.
5.
Types of Inmates,
Patients
or Pupils
6.
Number of Inmates,
Patients or Pupils on
Date of Report
7.
Exclusively for
Males, for Females;
or for Both Sexes
8.
Races Provided for
1.
2.
8.
Age Limits
of Inmates
10.
Territory from
which Inmates
are Drawn
11.
How Maintained.
Public, (State, City.
County or Town)
or Private
12.
If Private is
Institution
Licensed by
State?
1.
2.
3.
'/Xjs >
Suggested
Forms for Use oe
EuGENicisT, Court, Etc. 49
Weekly Charge
per Inmate
14.,
Date of Fore-
going Returns
Remarks
1.
2.
•
3.
NOTE: — For suggestions on other institutional data see the reports of the more
progressive Custodial Institutions, and the "Statistical Directory of State Institutions
for the Defective, Dependent and Delinquent Classes." H. I-I. Laughlin, Bureau of the
Census, 1919.
492
Suggested Forms for Use of Eugenicist, Court, Etc.
Form 9b.
MONTHLY INSTITUTIONAL REPORT OF ACCESSIONS AND LOSSES, TO
STATE EUGENICIST.
(These returns should be analyzed and summarized in other tables, following in
general the systems used by the more progressive Custodial Institutions.)
Name of Institution:
Place Located:
Name of Responsible Head:
REPORT OF ACCESSIONS DURING THE MONTH OF...^ 19 ,
1.
Name
3.
Institution
Case
Number
3.
Home Address
4.
Sex
5.
Age
6.
Diagnosis
7.
How
Admitted
1.
S.
3.
8.
Remarks
REPORT OF LOSSES DURING THE MONTH OF , 19..„
1.
Name
2.
Institution
Case
Number
3.
Home Address
4.
Sex
5
Age
6.
Diagnosis
7.
How Long
an
Inmate
1.
2.
3.
8.
Manner of Loss
9.
Remarks
1.
2.
3.
Notes on cases which are thought to be highly cacogenical:
Names of inmates concerning whom eugenicat field-studies have been made:..
Suggested Forms for Use of Eugenicist, Court, Etc. 493
Form 10a.
CASE RECORD OF EUGENICAL STERILIZATION.
Case number in files of the State Eugenicist
1. Full name ;.
(In case of a married woman, record both maiden and married name.)
2- Sex 3. Age when operated upon
4. Birthplace Present address
5. Name of court which ordered sterilization
6. Date of court order for sterilization
7. Attitude of individual and friends or kin toward operation
8. Type of operation ordered..
9. Names of surgeons consulted by State Eugenicist in deciding upon particular type
of operation
10. Date of operation
11. Surgeon : Name Address..
12. Condition of individual at time of operation
13. Effects of operation. (Record general and specific morphological, pathological,
physiological, psychological, — emotional expression and control, — mental, criminal,
social, sex, — masturbation, desire for sexual relations, — and economic effects of the
operation. Immediate and remote effects.)
NOTE: Add sheets of plain paper for the continuation of the record of this case.
Entries should be made from time to time as long as examinations and reports can be
secured. Each entry should be dated.
494 Suggested Forms for Use oe Eugenicist, Court, Etc.
Form 11a,
APPROPRIATIONS
Adequate funds for salaries, traveling expenses, etc., will be necessary if the state
is to carry out eugenical sterilization in a just and effective manner.
Working draft of appropration section to be inserted in the proper place in the
state's appropriation bills, according to the legislative practice of the particular state.
Section — . Appropriations. For the purpose of executing the provisions of the
Eugenical Sterilization Law (Chapter Session Laws ) for the
fiscal year ending , the sum of .$ is hereby appropriated, to be
expended on requisition of the State Eugenicist (or the head of the department to which
the State Eugenicist is directly responsible) as follows:
1. Salary of State Eugenicist $
3. Salaries of professional field-workers.
(To begin this work one such assistant will be needed for each
quarter-million inhabitants of the state. Later, as the department
• develops, this appropriation will, of course, adjust itself to the
policy of the particular state.)
Field-workers at $ per annum $
3. Salaries of stenographers.
(Approximately as many stenographers and clerks as field-
workers will be required.)
Stenographers and Clerks at $ per annum— .$
4. Traveling expenses for State Eugenicist and staff, and fees and
traveling expenses of witnesses (not including court witnesses)
aiding said State Eugenicist $..
5 Rent for office (if ample facilities are not supplied in state owned
buildings) $...
6. Office furniture and equipment $..
7. Printing, supplies, and maintenance service $...
8. Surgical, medical and hospital charges for cases of eugenical sterili- ..
zation duly ordered in accordance with the afore-mentioned Act....$..
9. Court and notary fees (if it is customary for the particular state to
make special appropriation directly to the administrative depart-
ment for such purpose?) $..
TOTAL if..
INDEX
INDEX
Achondroplasia, 372.
Agnew State Hospital, 55, 58.
Agricultural & Industrial School,
N. T., 85.
Ah Sun vs. Wittman, 239.
Alabama (State), 343.
Albinism, 373.
Alcoholism, 375.
Aldridge Case, 162, 197.
Alkaptonuria, 376.
Allen vs. Pullman Palace Car
Co., 192.
Amaurotic family idiocy, 379.
Ambidexterity, 375.
Ambrose, Thomas L., 19.
Amendments, 1, 7, 18, 107, 111,
134, 183.
American Medico-Psychological
Association, 69.
American Roentgen Bay So-
ciety, 412.
Ampulla, 405.
Anaemia (pernicious), 378.
Analysis of laws, 6.
Anarthrosis (digital), 377,
Anatomy, 397.
Andrews, Charles H., 82, 144,
217.
Angina pectoris, 379.
Angio-neurotic odema, 378.
Animalculists, 400.
Ankylosis, 377.
Anti-Sterilization League, 43.
Aphakia, 374.
Appeals, 135. 149, 152, 166, 198.
200, 205, 228, 234, 258, 450, 459.
Applegate, C. P., 56, 60, 67.
Appropriations, 6, 7, 8, 9, 10
11, 12, 13, 139, 439, 451, 460.
Arkansas Building & Loan As-
sociation vs. Madden, 192.
Archiv. f. Kriminal anthropo-
logic, 120.
Arteriosclerosis, 378.
Arthritis deformans, 379.
Asexualization, 53, 324, 433.
Ashley, Dr. M. C, 86.
Astigmatism, 379.
Ataxia (cereballar), 379.
Ateleiosls, 372.
Atkins vs. Kansas, 197.
Atrophy (muscular), 377, 379.
Atrophy (optic nerve), 376.
Auburn State Prison, 84.
Bagg, Dr. Halsey J., 413
Baer, K. E. von, 404.
Barbier vs. Connell, 239.
Barr, Dr. Martin W., 328, 351,
433.
Barrett, Dr. Albert M., 74.
Barrow, Dr. Bernard, 418.
Bartholim, glands of, 398.
Battey, Dr. Robert, 416.
Becker, State vs., 153, 156.
Beier, Dr. A. L., 95.
Bellfleld, Dr. Wm. D., 196.
Bell, Dr. Clark, 196.
Bell, Wm., 152.
Belm vs. Young, 192.
Benton vs. Budd, 192.
Bernstein, Dr. Charles, 85, 224,
230, 232, 235, 309.
Berry, Wm. H, 66, 143, 179.
Berzman, State vs., 154.
Bibliography, 372, 394.
Bigelow vs. Hartford Bridge
Company, 192.
Bi-lobed ears, 377.
Bill of attainder, 442.
Bingham, Judge Geo. G., 287.
Biology, 104, 113, 368, 443.
Bird, W. A. S., 30.
Birth Control, 346, 423.
Bissell vs. Davison, 324, 327,
328.
Blackburn vs. State, 187.
Blending trait, 384.
Bliss, Dr. Geo. S., 64.
Books (see Bibliography).
Boston, Chas. A., 120, 231, 336.
Brachydactylism, 372, 380.
Breeding, 364.
Bronchial asthma, 376.
Brown, Hon. R. E., 45.
Brown, Sequard, 56.
Bruce, Hortense V., 85.
Bryant, Commissioner vs. Skill-
man Hardware Company, 172.
Buford, Dr. J. A., 78.
Bulbi vestibuli, 398.
Bush, Robert P., 25.
Butler, Edwin M., Senator, 18.
Butler, P. O., 56, 59, 60.
Byers, Joseph P., 164.
Cacogenics, 357, 443, 447, 456.
California, 1, 2, 3, 6, 17, 52, 96,
99, 100, 101, 103, 104, 105, 107,
110, 111, 112, 115, 118, 125,
129, 131, 134, 137, 139.
California State Prison, Pol-
som, 61.
California State Prison, San
Quentin, 60.
Camfield vs. United States, 173.
Cancer (diathesis), 378.
Capper, Arthur, 30.
Carmiehael, Dr. P. A., 70.
Carroll, B. F., 21.
Case, J. D., 79.
Castrati, 407, 433.
Castration, 96, 111, 324, 328,
409, 425, 433, 435, 436.
Cataract, 374.
Catlin mark, 377.
Cave, Dr. P. C, 70, (434.
Chadwick, Judge, 162.
Chamberlain, Geo. E., 40, 41, 42.
Chapman, Dr. Alma J., 79.
Charles, H W., 73.
Charlestown vs. Werner, 238.
Charlton, G. E„ 78.
Cherokee State Hospital, 69.
Chester, Alden, Justice, 217.
Chevannes vs. Priestly, 171.
Chicago B. & G. R. R. Company
vs. Illinois, 239.
Chicago M. & St. Paul R. R.
Company vs. Westby, 239.
Chlorosis, 378.
Christian, Frank E., 84.
Christie, Dr. Arthur C., 412, 421.
Chromosomes, 401.
Clarinda State Hospital, 69.
Clarke, Fred P., 56.
Clarke, Geo. W., 22, 23.
Class legislation, 130, 440.
Clattenburg, H. A., 61.
Cleft palate, 377.
Cline, Jacob, 4, 146, 271, 291,
318.
Clinton State Prison, 84.
Clitoris, 398.
Cloquet, ligament of, 399.
Coakley, Dr., 225, 231.
Cobb, Dr. O. H., 85.
Coffey, 40.
Coloboma, 376.
Color blindness, 376.
Composite trait, 384.
Compton, L. H., 90, 271, 320.
Conant, Mary C, 85.
Coni, vasculose, 397.
Conlin, State vs., 324, 327.
Connecticut, 1, 4, 8, 19, 61, 96,
99, 100, 101, 105, 108, 112, 114,
115, 118, 125, 126, 129, 13l!
135, 137, 139.
Connecticut Hospital, Middle-
*ton, 61.
Connecticut Hospital, Norwich,
62.
Connecticut State Prison, Weth-
erfield, 61.
Consent of patient, 110.
Continence, 423.
Contraception, 346, 423.
Co-parent, 366.
497
498
IndBx
Cooley's Constitutional Limita-
tions, 187, 197.
Cornea (degeneracy), 377.
Corona radiata, 406.
Corpus lutcum, 405, 428.
Corpus spongiosium, 398.
Cosson, Geo. Adjutant-General,
184, 198.
Costill, Dr. Henry B., 164, 297.
Court Decisions, l' 159, 174, 186,
200, 213, 227, 234, 250, 257,
269, 289.
Court procedure, 107.
Courts conducting eugenlcal
studies, 394.
Cowper's glands, 398, 399.
Cretinism, 378.
Criminals, 117, 328.
Croup, 379.
Crumbacker, W. P., 68, 69.
CryptorcMsm, 377.
Cummings vs. State of Mis-
souri, 197.
Curie, P. and Mme., 412.
Custodial institution, 447, 456.
Cystinurla, 379.
Daniel, Dr. F. E., 351.
Davenport, Dr. Chas. B., 225,
236.
Davis, D. R., 48, 50.
Davis, Rudolph, 2, 143, 179,. 291,
304.
Davis vs. Berry, 179, 198, 212,
236, 239, 249, 252.
Dawson, Wm. J. G., 59.
Deaf mutism, 374.
Definitions, 446, 455.
Degeneracy, 324, 360, 441.
Dementia praecox, 375.
Dent in forehead, 377.
Dent vs. State of W. Va., 239.
Dental agnesia, 377.
Dereliction in execution of law,
125, 450, 460.
Deutoplasm, 406.
Diabetes insipidus, 376.
Diabetes mellitus, 376.
Diagnosis, 362.
Dickie, Wm., 54, 55.
Dickerson, D. S., 245.
Digital hair, 374.
Dinsmore vs. Southern Express
Co., 201.
Distal phalanges, 372.
Dlx, John A., 25.
Dominant trait's, 365, 882.
Donohoe, Dr. Geo,, 69.
Doran, Dr. Albert, 433.
Double-jolntedness, 373. •
Douglass, State vs., 15 4.
Dawdle, 171.
Dower, State vs., 156.
Dowden, State vs., 187.
Drake, Dr. P. I., 95.
DruckemiUer, MelvJn, 64.
Drum, Henry, 91, 292.
Due process of law, 132, 441.
Dubuque, Geo. P., 92.
Duncan vs. Missouri, 190.
Duryee, Dr. Chas. C, 82.
Dystrophia, M'uscularis, 377.
E.
Eastern New York Reforma-
tory, 84.
Ectopia lentis, 374.
Effects of sexual sterilization,
425, 431, 434, 436.
Elliott, Margaret M., 64.
Ellis, H. Havelock, 120, 432.
Elver, Hon. Elmore T., 172.
Emasculation, 277.
Emigration, 360.
England, situation in, 355.
Environment, 367.
Epigenesis, 401.
Epidermolysis, 373.
Epilepsy, 290, 375, 380.
Epileptics, Institutions for.
Village for Epileptics, Indi-
ana, 64.
State Hospital and Colony,
Iowa, 69.
State Hospital for Epileptics,
Kansas, 70.
Farm Colony for Epileptics,
Michigan, 74.
State Village for Epileptics.
N. J., 80, 164. 292.
Craig Colony, N. Y., 85.
Mansfield State Training
School, Conn., 4, 20.
Epistaxis, 378.
Estabrook, Dr. A. H., 63, 25.';,
256, 291, 312.
Eugenlcal Education, 356.
Eugenlcal Investigators, 358.
Eugenicist, 102, 110, 447, 456.
Eunuch, 409, 427.
Euthanasia, 338.
Evans, Briton D., 80.
Exophthalmic goitre, 378.
Exostoses, 373.
Bye Color, 374, 380.
Ex post facto, 442.
Fallopian tubes, 111, 112, 130,
401, 405, 421.
Family histories, 104, 291.
l''arrington. Judge E. L., 247.
250.
Fii.st, W. S., 7S.
Federal (loveriimenl. 451.
Feebleminded, the, 305.
Feebleminded, ln.stitiillons for.
Ciilcmy for l'\'el)le M'inded
Male.M, N. J„ 80.
Home Tor Feeble Minded.
Wis., 95.
IndlaiiM, School for Feeble
Minded Youth, 61.
Indiana Farm Colony for
Feeble Minded, 64.
Institution for Feeble Minded
Women, N. J., 80.
Institution for Feeble Minded
Children, N. Y., 85.
Institution for the Feeble
Minded, N. D., 87.
Institution for the Feeble
Minded, Oregon, 90.
Letchworth Village, N. Y., 85.
Michigan Home and Training
School, 3, 74, 203, 305.
Nebraska Institution fof Fee-
ble Minded Youth, 77, 78.
Newark State School, N. Y.
85.
Pacific Colony, Cal., 3, 8, 19
60.
Rome Custodial Asylum, N.
Y.; 85, 217, 305.
Sonoma State Home, Cal., 7,
18, 19, 55, 59.
Southern Wisconsin Home for
Feeble Minded, 95.
State Home for Feeble Mind-
ed, Kans., 70.
State Institution for Feeble
Minded, S. D., 91.
Pe.eblemindedness, 375, 380.
Feilen, Peter, 1, 123, 142, 149,
170, 171, 173, 188, 196, 212
215, 233, 236, 237, 249, 252
291, 292, 329.
Fenning, Frank A., 121.
Fernald, Dr. Walter E., 225, 232
236.
Ferris, Woodbrldge N., 28.
Field surveys, 448.
Fimbriae, 405.
Finger-print pattern, 379.
Fisher Co.. vs. Woods, 231.
Flood, Dr. Everett, 351.
Fogarty, Edw. J., 64.
Follicular fluid, 404.
Forms, 464.
Fosters Federal Practice, 192.
Foster, Warren F., 122, 196.
French vs. Teschermaker, 156.
Friedrich's ataxia, 375.
Fundus, 406.
Gametes, 397. 405.
Garcia vs. Territory, 155.
Garvin, Dr. Wm. C, 87.
Gedkirche. State vs.. 173.
Gennat. Dr., 120.
Germ tract. 39S. 403.
GeniKro.ss, Dr. Frledr, Ludg.,
121.
Gibson. State vs.. 170.
Gillett, Governor James X., 17.
Giraldes, organ of, 397.
Glands, sex, 425, 428, 434.
Glaucoma, 374.
Globus major, 400.
Glueek. Dr. Bernard, 121.
Goitre, 378.
Gonad, 407, 426.
Good, Dr. A., 119.
Goodrich, James P., 63, 255, 313.
Gose. Judge, 162.
Gould vs. Gould, 170, 324. 327,
331.
Gout, 78.
Gower's muscular atrophy, 377.
Graafian follicles, 403.
Graham vs. West Virginia, 187,
194.
Index
499
Grainger vs. Douglas Park
Jockey Club, 239.
Graves, Commonwealth Mass.
vs., 187.
Gray, W. F., 121.
Griffiths, Dr. D. G., 78.
Grover, Dr. O. M'., 85.
Gulf, Colorado etc. R. R. Co. vs.
Ellis, 176, 211.
H.
Hair, 373, 374, 376, 377, 380.
Halgrims, Col., 22
Hamburg - Amer. - Packetf ahrt-
Aotien Gesellschaft vs. U. S.,
201.
Hamilton, Judge, J. W., 319.
Handclasp, 377.
Handwriting, 379.
Hanna, L. B., 26.
Hapsburg lip, 373.
Harelip, 377.
Harvey, William, 404.
Hart, Governor L. P., 15.
Haskell, Dr. Robert H., 74.
Hatch, Dr. F. W., 52, 322. ,
Hathorn vs. Natural Carbonic
Gas Co., 238.
Haviland, Dr. C. Floyd, 61.
Hay fever, 379.
Hay, Governor M'. E., 15.
Hayes vs. Missouri, 190.
Haynes, Dr. H. A., 74, 144, 203,
305.
Heacox, Dr. Frank L., 84.
Health Department of N. Y. vs.
Rector, 240.
Head form, 373.
Heart defect, 378.
Hemenway, Dr. Henry B., 120.
Henrichs, R. B., 79.
Hemophilia, 377.
Hennessy, John V., 82.
Heredity, 99, 363, 365, 447, 455.
Heyman, Dr. Marcus B., 87.
Hernia, 378.
Hill, John, 92.
Hilsabeck, State vs., 154.
Hinshaw, Dr. T. E., 71.
Histories, case, 291, 448.
Hobbs vs. State, 154, 162, 197,
252.
Hoboken vs. Goodman, 172.
Hodges, Geo. H., 29.
Holden, Hon. Geo. B., 92.
Holden vs. Hardy, 230, 324, 328.
Holmes, Justice, 201.
Holt, Robert E. L., 88, 90.
Honeij, Dr. James A., 413.
Hopper vs. Stack, 172.
Hooker vs. Burr, 199.
Hormone, 427.
Hotchkiss, Dr. Wm. M., 87.
Howe, J. E., 66, 180.
Hoyt, Geo. E., 31.
Hubbard, O. S., 70.
Hugo, Francis M., 82.
Humes, Mo. P^ R. Co. vs., 161.
Hunter,. Joel D., 121.
Huntington's Cliorea, 375.
Kurd, Dr. Arthur W., 86.
Hurd, Dr. Henry M., 350.
Hurtado vs. California, 325.
Hutchinson Reformatory, 3D.
Hypertrichosis, 373.
Hypertrophic emphysema, 379.
Hypospadias, 377.
Hypotrichosis, 373.
Hysteria, 375.
Hysterectomy 111, 414.
Hystero-salpingo-oophorec-
tomy, 414.
Hytatid, 397.
Icterus, 379.
Ichthyosis, 376.
Idaho, 4, 48.
Illegal use of sexual steriliza-
tion, 125, 356, 450, 466.
Immigration, 349, 360.
Immorality, 440.
Indiana, 1, 4, 6. 15, 63, 96, 99,
100, 101, 103, 105, 107, 112,
114, 118, 124, 129, 131, 134,
137, 139, 145, 255, 343.
Industrial Schools.
Agricultural and Industrial
School, N. Y., 85.
Farm for Boys, Valatie, N.
Y., 84.
Home for Boys, N. J., 80.
Indiana Boys' School, 64.
Indiana Girls' S'chool, 64.
Industrial School for Girls,
Kansas, 73.
Industrial School for Boys,
Kansas, 73.
Industrial School for Boys,
Neb., 79.
Industrial Home, Neb., 79.
Industrial School for Girls,
Neb., 79.
Industrial School for Boys,
Wis., 95.
Industrial School for Girls,
Wis., 95.
Preston School of Industry,
Cal., 60.
Reform School at Mandan,
N. D., 87.
State Home for Girls, N. J.,
80.
Training School for Girls,
N. Y., 85.
Inebriates, State Hospital for,
Iowa, 69.
Infundibulum, 405.
Inmate, 447, 456.
Insane, State Hospitals for,
Agnew, Cal., 55.
Ann Arbor, Mich., 74.
Binghamton, N. Y., 86.
Buffalo, N. Y., 86.
Central Islip, N. Y., 87.
Cherokee, Iowa, 69.
Clarinda, Iowa, 69.
Collins, N.Y., 86.
Eldridge, Cal., 55.
Independence, Iowa, 69.
Ingleside, Neb., 76, 78.
Ionia, Mich., 74.
Jamestown, N. D.,.87.
Kalamazoo, Mich., 73.
Kings Park, N. Y., 86.
Larned, Kans., 71.
Lincoln, Neb., 77, 78.
Long Island, N. Y., 87.
Manhattan, N. Y., 87.
Matteawan, N. T., 85.
Mendota, Wis., 95.
Middletown, Conn., 61.
M'iddletown, N. Y., 86.
Morris Plains, N. J., 80.
Napa, Cal., 54.
Newberry, Mich., 74.
Norfolk, Neb., 77, 78.
Norwalk, Cal., 56.
Norwich, Conn., 62.
Ogdensburg, N. Y., 86.
Osawatomie, Kans., 70.
Patton, Cal., 55,' 96.
Pendleton, Ore., 89.
Pontiao, Mich., 73.
Poughkeepsie, N. Y., 85.
Rochester, N. Y., 86.
Salem, Ore., 89.
Stockton, Cal., 54.
Talmage, Cal., 55.
Topeka, Kans., 70.
Traverse City, Mich., 73.
Trenton, N. J., 80.
Utlca, N. Y., 85.
Waupun, Wis., 95.
Willard, N. Y., 85.
Winnebago, Wis., 95.
Institutions, 393.
(See also. Insane, Epileptic,
Feeble minded. Industrial
Schools, Penitentiaries, Pris-
ons, Reformatories.)
Intellectual capacity, 375.
Involutional melancholia, 375.
Iowa, 1, 2, 3, 8, 21, 64, 96, 99,
100, 101, 103, 104, 105, 108,
111, 112, 114, 115, 118, 125,
126, 129, 131, 135, ■ 137, 142,
179.
Iowa Board of Control, 68.
Iowa Board of Parole, 65, 67,
179, 200, 304.
Ishmaels, 63.
Iso-agglutinins, 377.
Isthmus, 405.
J.
Jackson, 192.
Jacobsen vs. Massachusetts,
171, 172, 238, 240.
Jaundice, 378.
Jewish facial type, 373.
Johnson, Hiram W., 18
Johnston, J. A., 60.
Jones, Robert O., 50.
Jones, State of Iowa vs., 187.
Jones vs. Montague, 201.
Jordan, Dr. Alfred C, 413.
Journals, 394. _'
Journal of Criminal Law' arid
Criminology, 121, 122.
Jukes, 63, 328. , ' ' ]
Juristisch-psychiatris(ih'eGrenz_-
fragen, 120.
500
Index
Kalamazoo State Hospital, 73.
Kansas,.!, 3, 11, 29, 69, 96, 100,
101, 102, 103, 104, 106, 109,
110, 111, 113, 114, 116, 118,
125, 126, 129, 132, 135, 136,
138, 140.
Kansas State Penitentiary, 71.
Kelcher vs. Putnam, 171.
Kelly, Judge Percy R., 287.
Kelly vs. People, 187.
Kemmler, 162, 189, 197.
Kendriek, Hon. W. R. C, 179.
Kern, W . B., 60.
Kimmish vs. Ball, 239.
Kincald, State vs., 160.
Kutnewsky, Dr. J. K., 91.
J,.
Labia majora, 398.
Labire, A. R., 34.
Lambert vs. Alcorn, 192.
Latham, Dr. C. O., 94.
Laws, 1, 6, 438.
Laws, text of, 15.
Laws, analysis of, 99.
Lee, Oscar, 95.
Leeper vs. Texas, 189.
Left-handedness, 375.
Legal counsel, 110, 449, 459.
Legal requirements, 440.
Legislation, 15, 342, 356, 438.
Leprosy, 379.
Lewelling, L. G., 42.
Liability, legal, 124, 450, 460.
Libido, 425.
Lied vs. Henderson, 193.
Light, Jno. H., Attorney Gen-
eral, 333.
Light vs. United States, 199,
200.
Litigation, 142, 149, 164, 179,
203, 217, 243, 256, 271.
Little, Dr. Chas. S., 85.
Little, Lora C, 43.
Lonas vs. State, 170.
Longevity, 377.
Lowe vs. Kansas, 190.
Mackin, Dr. M. C, 69.
Macomber, J. Frank, 80.
Macula lutea (degeneration),
379.
Macy, Dr. Wm. A., 86.
Magoun vs. Illinois Trust, 190.
Main, Hon. John F., 152.
Main, State vs., 289, 324.
Mansel, V. H., 80.
Mansfleld State Training School,
20.
Marcy, Alesc. Jr., 164.
Marriage Annulment, 346.
Marriage Restriction, 326, 342,
371.
Marshall, Louis, 334.
Marshall, Thomas R., Governor,
6, 63, 146, 255.
Mason, T. R., 48.
Mathematical ability, 378.
Mating, 381.
Matthew, Railroad vs., 190.
Matthews, A. C, 54, 58, 325.
McCabe vs. A. T. & S. F. Ry
Company, 200.
M'cCauley, Chris., 92.
McCauley, State vs., 155, 197.
McCaughry, Charles C, 61.
McCoy, Etta Joe., 73.
McCoy, James F., 40.
McKelvle, Hon. S. R., 47.
McKenna, Justice, 329.
McLean, Donald T., 245.
McNary, Dr. W. D., 89.
McPherson, Smith J., 181, 191.
Mechanical ability, 378.
Meehan vs. Excise Com., 172.
Megalophythalmus, 379.
Memory, 379.
Mendelism, 366.
Mendocino State Hospital, 55,
58.
Menieres disease, 375.
Mesoderm, 397.
Metabolism, 426.
Meyer, Dr. Adolph, 120.
Michigan, 1, 3, 11, 28, 73, 96,
100, 102, 103, 104, 106, 108,
110, 113, 114, 116, 118, 125,
126, 129, 132, 135, 138, 140,
143, 203, 343.
Michigan Home and Training
School, 74.
Mickle, Pearly C., 2, 145, 243,
271, 311.
Microphthalmia, 377.
Migraine, 378.
Mills vs. Green, 201.
Milroy's disease, 378.
Milwaukee County Hospital for
Mental Diseases, 96.
Mitchell,- Dr. H. W., 39.
Mitchner, Lillian M., 73.
Model Forms, 465.
Model Law, 110, 446, 454.
Mongolian imbecility, 379.
Moore vs. State of Missouri,
187, 239.
Moral Perverts, 292, 311, 312,
318.
Morehead, John H., 32, 48, 75.
Morgagni, hytatid of, 397.
Morgan, 429.
Morris Plains State Hospital,
80.
Morris vs. Columbus, 171.
Morse, State vs., 238.
Mott, David C, 66, 180.
Mowrer, Dr. G. E., 68.
Multiple sclerosis, 376.
Munn vs. State of Illinois, 240.
Munson, James D., 73.
Murphey, Commonwealth vs.,
16S. 161.
Murphy, Chas. A., 90.
Muscular atrophy, 376.
Myopia, 376, 380.
Myxoedema, 379.
Nail defects, 380.
National Christian League for
Promotion of Purity, 84.
Nebraska, 1, 2, 13, 32, 46, 74,
96, 100, 101, 102, 103, 104,
106, 109, 111, 113, 117, 118,
125, 129, 132, 135, 138, 140.
Nebraska Board of Examiners
of Defectives, 75.
Nelles, Fred C, 60.
Neurasthenia, 379.
Neurofibromatosis, 378.
Nevada, 1, 2, 3, 8, 20, 79, 96
100, 101, 103, 105, 108, 112
115, 118, 125, 131, 136, 137,
145, 243.
Nevln, D*. Ethan A., 85.
New Jersey, 1, 2, 10, 23, 80, 96,
99, 100, 102, 103, 105, 108,
110, 113, 114, 116, 118, 125,
129, 132, 136, 137, 139, 142,
164, 343.
New Jersey Board of Examin-
ers of Feeble Minded, etc., 164.
New Orleans Gas Light Co. vs.
Drainage Co., 238.
New York, 1, 2, 3, 4, 10, 25, 81,
96, 99, 100, 102, 103, 104, 105,
108, 110, 113, 114, 116, 118,
125, 126, 129, 132, 136, 137,
139, 144. 217, 343.
New York Board of Examiners
of Feeble Minded, etc., 164.
Night blindness, 376, 380.
Noble State Bank vs. Haskell,
170, 172.
North Dakota, 1, 10, 26, 87, 96,
99, 100, 102, 103, 104, 106,
108, 110, 113, 114, 116, 118,
125, 129, 132, 133, 138, 139,
343.
Northrup, "W. H., 26.
Nymphae, 398.
Nystagmus, 376.
O.
Oberholzer, Dr. Emil, 120.
Obesity, 379.
Dbjections, 438.
Odell, Arthur, 28.
Oddie, Tasker. L., 21.
OUswane, Dr. D. E., 85.
Olson, Donald B., 91.
Olson, Hon. Harry, 322.
O'Neil vs. State of Vermont,
162, 188. 189, 197.
Operations, types of. 111, 407,
422, 432.
Opinions, legal, 1, 206, 222, 287,
322.
OCphorectomy, 111, 329, 415,
416, 428, 434, 435.
OOphoro-hysterectomy, 414.
Orchldectomy, 409.
Orders for sterilisation, 164,
179, 272.
Oregon, 1, 2, 3, 4, 13, 33, 40,
88, 96. 100, 101, 102, 104,
106, 109, 110, 111, 113, 114,
117, 118, 125, 130, 132, 136,
138, 140, 146, 271, 343.
Oregon State Bofird of Eugenics,
4, 33, 88, 146, 271.
Osawatomie State Hospital, 70.
Osborn vs. Blank, 187.
Index
501
Osborn, Frank, 2, 144, 217, 291,
305.
O'Shea, 162, 197.
Osteopsathyrosis, 373, 380.
Osterreichlsohe Zeltsohrlft fOr
Strafreoht, 120.
Ostoscleroals, 875.
Ostrander, Dr. Herman, 73.
OS uteri, 406.
Ovaries, 404, 428.
Ovariotomy, 53, 96, 111, 482
433.
Oviduct, 111, 397, 405.
Ovists, 400.
Ovum, 397, 406.
Owens-Adair, Dr., 41, 43.
F.
Pacific Colony, Cal., 3, 8, 19, 60.
Pacific Express Co. vs. Slebert,
192.
Palmaris longus, 376.
Pan-hystero-kolpectomy, 414.
Paradidymis, 397.
Paralysis, 379.
Paramyoclonus multiplex, 379.
Paranoia, 375.
Parker, Judge, 162.
Paroophoron, 397.
Parovarium, 397.
Parsons, F. W., 86.
Parthogenesls, 401.
Passaic vs. Patterson Bill Post-
ing Co., 172.
Patchen, State vs., 149.
Pattern baldness, 376.
Peck, Arthur K., 33.
Pedigrees 104, 362, 369.
Penis, 398.
Penitentiaries.
(See also Prisons and Re-
formatories.)
Iowa, 179, 304.
Kansas, 71.
Nebraska, 79.
Nevada, 79.
North Dakota, 87.
Oregon, 90, 271,318.
Washington, 91, 162.
Pennsylvania, 1, 4, 35, 39, 343.
Pennsylvania State Vaccination
Commission, 341.
Pennypacker, Saml. "W., 36.
People vs. Morris, 153.
People vs. Miner, 194.
People vs. King, 238.
People vs. Budd, 238.
People vs. Hupp, 238.
People vs. Freeman, 239.
People vs. Havnar, 239.
People vs. Morse, 239.
People vs. West, 240.
Perkins, Elt C, 21.
Perry, Dr. M. L., 70.
Phalleotomy, 407.
Phallo-orchidectomy, 407.
Philpott, Austin F., 179.
Physiology, 425.
Pllcher, Dr. F. Hoyt, 351.
Pilsbury, Dr. Lawrence B., 78
Pitts, 192.
Pittsburgh, etc. Ry. Co. vs.
Board of Public Works, 192.
Pituitary, 426.
Pneumonia, 378.
Poison Ivy, immunity to, 373.
Pollock, Dr. Henry M., 62.
Pollock, John C. J., 190, 191.
Polydactyly, 372.
Potentia generandl, 425.
Potentia coeundi, 425, 436.
Potential parent, 447, 455.
Potter, Dr. C. A., 86.
Price, W. P., 17.
Pridgeon, U. S. vs., 160.
Prince, L. H., 95.
Prisons.
(See also penitentiaries and
reformatories.)
Auburn State Prison, N. T., 84.
California State Prison, San
Quentin, 60.
California State Prison, Pol-
som, 61.
Clinton State Prison, Danne-
mora, N. Y., 84.
Connecticut State Prison,
Wethersfleld, 61.
Great Meadows Prison, Com-
stock, N. T., 84.
Indiana State Prison, Michi-
gan City, 64.
Indiana Woman's Prison,
Indianapolis, 64.
Indiana State Farm, 64.
Industrial Farm for Women,
Neb., 79.
New Jersey State Prison,
Trenton, 80.
Sing Sing Prison, Ossining,
N. Y., 84.
State Prison, Nevada, 245.
State Prison, Waupun, Wis.,
94.
Western House of Refuge for
Women, N. Y., 85.
Procreate, 447, 455.
Propositus, 362.
Prostate, 398, 426.
Protein sensitization, 377.
Protoplasm, 401.
Ptosis, 374.
Punishment, cruel and unusual,
442.
Punitive motive, 101.
Quarantine, 133, 341, 438.
Radio-ulnar synarthrosis, 373
Rathke, duet of, 397.
Raymond, P. H., 91.
Raynaud's disease, 378.
Read, Horace D., 15.
Recessive traits, 365, 381.
Records. 137, 271, 448.
Redmon, State of Wisconsin
vs., 238.
Ref ormatori es —
(See also Penitentiaries and
Prispns.)
Clinton, New Jersey, 80.
Eastern New York Reforma-
tory, 84.
Green Bay, Wisconsin, 94.
Industrial Home for Women,
Wisconsin, 95.
Industrial Reformatory, Kan-
sas, 73.
JefCersonville, Indiana, 63,
256, 312.
Monroe, Washington, 91.
New York State Reformatory,
84.
Rahway, New Jersey, 80.
Reformatory for Women, 85.
Reily, John A., 55, 58.
Rem. & Bal. Code, 153.
Remser, W., 80.
Rentoul, Dr. R. R., 355, 433.
Repeals, 1, 26.
Reports, compulsory, 357.
Research institutions, 392.
Rete testis, 397, 400.
Retinitis pigmentosa, 374.
Reynolds, Nora, 3, 143, 144, 203,
291, 305.
Rheumatism, 378.
Richard, John Lewis, 58.
Richards, Robert Lewis, 55.
Right-handedness, 375.
Robb, State vs., 239.
Roberg, Dr. David N., 89.
Robinson, Dr. C. A., 60.
Roentgen, W. K., 412.
Rosenfeld, Dr. Ernst, 120.
Ross, Dr. John R., 84.
Rudd, Honorable William P., 4,
221, 222, 231.
Ruppenthal, Judge J. C, 347.
Ryon, Dr. Walter G., 85.
S.
Sadler, Dr. William S., 122.
Sage, Henry M., 26.
Salpingectomy, 96, 111, 419, 422,
435.
Salpingo-oophorectomy, 415.
Santa Clara County vs. So.
Pacific R. R. Co., 239.
Saunders, James C, 179.
Schweizerische Zeitschrift fiir
Strafrecht, 119.
Scoliosis, 378.
Scott, A. B., 29.
Scott, K. W., 61.
Scrotum, 398.
Seaboard Air Line Ry. vs. R. R.
Com. of Ga., 198.
Segregation, 350, 439.
Sellers, Dr. L. R., 71.
Seminal vesicles, 400.
Sex-linked traits, 365, 383.
Shanahan, Dr. William T., 85.
Sharp, Dr. Harry C, 119, 145,
156, 161, 196, 231, 237, 255,
323, 328, 351,.
Shelton vs. Piatt, 192.
Shenango vs. Wayne, 17V«
Shideler, George A. H., 256.
Shumway, H. P., 32.
Slier vs. Louisville & Nashville
R. R., 199, 200.
Simon vs. Craft, 240.
502
Index
Skin, 373.
Slaught, Dr. A. W., 23.
Sleyster, Dr. Rock, 95.
Smith, Alfred E., 26.
Smith, Alice, 1, 2, 142, 164, 188,
206, 210, 215, 233, 236, 237,
251, 291, 292..
Smith, Andrew C, 271.
Smith, Dr. G. A., 87.
Smith, J. J.. 61.
Smith, Dr. J. N., 90, 271.
Smith, Jessie Spaulding, 121.
Smith, Walter I., 191.
Smith, "Warren Wallace, 146,
255, 291, 312.
• Smyth, Dr. Margaret H., 410
411, 418.
Social inadequates, 369, 430,
446, 465.
Societies, 392.
Sonoma State Home, 7, 18, 19,
55, 59.
South Dakota, 3, 13, 34, 90, 96,
100, 101. 102, 104, 106, 113,
117, 119, 125, 130, 132, 135
138.
Southern California State Hos-
pital, 55, 58.
Spastic paraplegia, 379.
Spaying, 414, 428.
Spermatozoon, 397, 398, 400, 401
402.
Spermectomy, 410.
Splenic anemia, 378.
Sproul, William C, 39.
St. Johnsbury, State Board of
Health vs., 239.
St. Louis vs. Gait, 239.
Stansbury, Ele, Attorney Gen
eral, 257.
Statistics, institutional, 52.
Steinach, 429.
Steiner, Dr. R. E. Lee, 89, 271.
Steno, Nicolaus, 404.
Stephens, William D., 19.
Sterilization, 53, 56, 57, 277,
338, 351, 360, 447, 456.
Stewart, R. A., 69.
Stocking, Leonard, 55.
Stockton State Hospital, 54, 56.
Strotl vs. Commonwealth, Mass.
252.
Sturtevant vs. Commonwealth,
Mass, 187.
Stuttering or Stammering, 378.
Sumner, Dr. Guilford H., 69.
Suprarenal cortex, 426.
Surgery, 407.
Sydenham's Chorea (St. Vitus'
dance), 375.
Srayphalangy, 872.
Syndactyly, 372.
Taber, Honorable E. J. L., Judge
243.
Taleifi 376.
Talkington, C. E., 64.
Tappins, M. J., 94.
Teeth, 376, 377.
Telangiectasis, 378.
Temperament, 376.
Testes, 399, 425.
Testes mullebres, 404.
Testiectomy, 434.
Thalassophllia, 377.
Thatcher, George B., Attorney
General, 248, 250.
Thayer, Ethel H., 54.
Thayer, Dr. W. N., Jr., 84.
Therapeutic purpose, 100, 127,
436.
Thigh-bones (dislocation), 379
Thomson's disease, 376.
Thomson, Dr. Lemon, 2, 82, 144,
217, 306.
Thorn, George B., 81.
Thyroid, 426.
Thymus, 426.
Todd, Arthur J., 120, 121.
Tomllnson, Wilbur F., 19.
Toothlessness, 377.
Topeka State Hospital, 70.
Traits, list of, 366, 372.
Traverse City State Hospital,
73.
Treat, F. S., 68.
Tremor, 379.
Trenton State Hospital, 80.
Tubectomy, 56.
Tubull recti, 400.
Turpin vs. Lemon, 199.
Twice in Jeopardy of life and
limb, 442.
Twins, 377.
Tyler vs. Judges, 199.
Tylosis palmae et plantae, 373.
Tyrrell, Edward J., 18.
Universities, 393.
Urethra, 398.
Urogenital sinus, 398.
Utah, 343.
Uterectomy, 111.
Uterus, 397, 403, 405.
Vaccination, 130, 133, 339, 438.
Vagina, 397.
Van Wagenen, Dr. Sleeker, 225,
236.
Van Waters, State vs., 149, 154.
Vasa deferentla, 111, 397, 898,
400, 405, 406, 408, 410, 411,
422, 435,
Vasa efterentla, 397, 400.
Vasectomy, 66, 96, 130, S25, S27
329, 362, 410, 434.
Venereal Diseases, 343, 346.
Vermont, 1, 43, 844.
Vetoes, 1, 35, 36, 38, 40, 45, 47,
60.
Vlemelster and Jacobsen vs.
Commonwealth, Mass., 233,
240.
Virginia, 344.
Vita sexualis, 425.
Vitiligo, 873.
Voldeng, Dr. M. N., 66, 69.
Von Recklinghausen's disease
378.
W.
Wagner, Dr. Charles G., 86.
Walker vs. Jameson, 239.
Wanderlust, 377.
Wansboro, Dr. William J., 82,
144, 217.
Washington, 1, 4, 6, 16, 91, 96,
99, 100, 101, 103, 104, 106,
107, 110, 111, 112, 115, 118,
124, 129, 131, 136, 137, 139,
142, 344.
Webb, U, S. Attorney General,
328.
Webbed toes, 377.
Weeks, Dr. David F., 164, 291,
297.
Weeks, F. B., 19.
Weems, 61, 162, 1'73, 189, 197,
231, 249, 252.
Werner, H. C, 95.
West, Oswald, 42.
Western House of Refuge, N.
T., 85.
Whalen vs. Dalahsmutt, 192.
Wharton, Criminal Law, 197.
White, B. H., 23.
White, State vs., 249.
Whltten vs. State, 155, 160, 162,
197, 249, 251, 330.
Wilcox, F. S., 62.
Wilkerson vs. Utah, 162, 197.
Williams vs. Boynton, 187.
Williams, Dr. Charles F., 146,
266.
Williams, H. W^., 94.
Williams, Sidney, 152.
Williams, State vs., 166, 160,
162, 197.
Williams, William B. J., 206.
Wilmarth, Dr. A. W., 96.
Wilson, Woodrow, 23.
Wisconsin, 2, 12, 31, 92, 96, 100,
101, 102. 103, 106, 109, 110.
Ill, 113, 116, 118, 126, 126.
129, 132, 135, 138, 140, 149,
344.
Wisconsin State Board of Con-
trol, 93.
Withycombe, James, 33.
Witte, Jrax E., 67, 69.
WItthaus and Becker, 159.
Wolffian bodies, 397.
Woodbury, Egburt E., 221.
Woodruff vs. New Tork and
New England Railroad Com-
pany, 327.
Woodward, Dr. George, 36.
Woodward, State vs., 161, 330.
Worbeck, Peter, 34.
Wyatt's Case, 162, 197, 250.
Wylie, Dr. A. R. T., 87.
X-rays, 112, 119, 133, 407, 412,
421, 422.
Z.
Zeltschrlft fUr die gesamte
Strafrechtswlssenschaft, 120,
Zona pellucida, 406.
Zuhlke, Daniel F., 206.
Zygote, 404.
"To he a good animal is the
frst requisite to success in life,
and to he a Nation of good
animals is the first condition to
National prosperity."
— ^Herbert Spencer.
^^«2?
. v^>- ■:
, r^(*i'.-.*«. '•■.."' •'-
• - 1-.*
'r-
•"■•k
1 . >
• »
".:>
; . p •
1
1
•<
■♦'.
'. •■
,, '-.'l"^
■j^^Jil*.
Live Music
Archive
Librivox
Free Audio
Metropolitan Museum
Cleveland
Museum of Art
Internet
Arcade
Console Living Room
Open Library
American
Libraries
TV News
Understanding
9/11